Harwell v. State , 11 Ala. App. 188 ( 1914 )

WALKER, P. J.

The first witness for the state Avas Lewis Stanford, Avho testified as to the purchase by him of some whisky from the defendant. On the cross-examination of this witness he stated that he bought the whisky from the defendant under instructions from one McCord, who subsequently was a witness against the defendant and stated as to himself that he was officially connected with the excise commission of the city of Montgomery and that his business was to run down blind tigers. After Stanford had, in somewhat evasive answers to questions asked on his cross-examination as to the nature of his employment by McCord, stated that McCord had not paid him specially for buying the whisky from the defendant, he was asked. “What is he to pay you for it?” The defendant duly excepted to the action of the court in sustaining the solicitor’s objection to this question. We are of opinion that the question was one which the court should have allowed to be answered. On the cross-examination of the witness the defendant was entitled to bring out any fact having a tendency to impeach his impartiality. It is not to be denied that the jury, in determining whether or not the witness was under the influence of a bias that might affect the weight to be accorded to his testimony, should have been permitted to look, not only to the fact that he had been employed to obtain incriminating evidence against the defendant, but to the amount of compensation he expected to receive for the service rendered by him in that regard. — Southern Railway Co. v. Crowder, 130 Ala. 256, 30 South. 592; Jones on Evidence, § 828.

The court was not in error in sustaining the objection of the solicitor to the question asked the state’s witness Molton on his cross-examination, “You have been on the chain gang, haven’t you?” An obvious purpose of the question was to elicit an admission by the witness of a fact from which his conviction of a criminal offense might be inferred. The conviction, touching which a witness may be examined is one of a crime that is infamous. — Code, §§ 4008, 4009; Wlliams v. State, 144 14, 40 South. 408. The question objected to was too genera], as from the witness’ affirmative answer to it it might have been inferred that he had been convicted of some offense, whether infamous in its nature or not. The defendant was not entitled to require the witness to testify as to his conviction of an offense his guilt of which would not affect the competency or credibility of his testimony.

Bach of the three counts of the indictment charged the defendant with selling prohibited liquor. In a trial on such an indictment the defendant is not entitled to have the state limited to evidence as to one such sale.— Shivers v. State, 7 Ala. App. 110, 61 South. 467; Loudermilk v. State, 4 Ala. App. 167, 58 South. 180.

The bill of exceptions shows that, after the jurors had retired to consider their verdict and upon their return to the courtroom before a verdict had been agreed upon, the presiding judge had some communication with them in reference to the case while the defendant and his counsel were not present. As the judgment appealed from must be reversed because of the error above pointed out, it is not necessary to determine whether or not this incident has properly been presented for review, or to say more of it than that a trial court should refrain from having any communication with the jury in reference to a case on trial Avithout affording to the parties and their counsel an opportunity to be present when this occurs. — Morris v. State, 146 Ala. 66, 102, 41 South. 274; Feibelman v. Manchester Fire Assurance Co., 108 Ala. 180, 203, 19 South. 540.

Reversed and remanded.