Hickman v. State , 12 Ala. App. 22 ( 1915 )

BROWN, J.

It is an ancient rule of the law that a party cannot directly impeach the character of his own witness for the purpose of discrediting testimony given by the witness and with which the party is dissatisfied. The reason for this rule, that seems to have stood the test of time and experience, is that when a party offers a witness in proof of his cause he thereby, in general, represents him to be worthy of belief, and will not be allowed to assume the inconsistent attitude of saying that he is unworthy of belief, This rule, however, is not violated, if the witness proves to be hostile to the proponent, or by previous statements made by the witness he has been deceived or misled, and is surprised and plated at a disadvantage by unexpected answers, by allowing leading questions calling to the attention of the witness previous contradictory statements, even though an affirmance of such previous statements may have a tendency to affect the credibility of the witness.—White v. State, 87 Ala. 26, 5 South. 829; Hemingway v. Garth, 51 Ala. 530; Thomas v. State, 117 Ala. 178, 23 South. 665; Schieffelin v. Schieffelin, 127 Ala. 35, 28 South. 687; Southern Bell Telephone Co. v. Mayo, 134 Ala. 645, 33 South. 16.

The witness Bama Rushing Avas the wife of the deceased and also the daughter of the defendant, and on her examination as a witness for the state testified, contrary to the state’s theory of the case, that the deceased, after he had started home with witness, turned and said that he was going back and kill the defendant, and ran up the steps and struck at the defendant with his knife, and defendant shot him. Thereupon, in response to the question put by the solicitor, witness admitted that she had testified before the grand jury a few days before the trial and also admitted that she had had a conversation with the solicitor before she went on the stand. On this predicate the court, over the objection of the defendant, allowed, the solicitor to ask the witness:

“Did you not testify, Avhen yon Avere before the grand jury, that Asbury (the deceased) started to your father and got on the steps, but that Asbury turned around and told your father that Bama (the witness) was in no condition for him to have a difficulty, and that he (deceased) then turned to go back to you, and that as he turned your father shot him?”

This question, under the rule above stated, was proper, and the court ruled correctly in alloAving it.—Lanier v. State, 1 Ala. App. 31, 55 South. 1032; Glenn v. State, 157 Ala. 12, 47 South. 1034; Thompson v. State, 99 Ala. 173, 13 South. 753; Billingslea v. State, 85 Ala. 325, 5 South. 137.

Nor is the rule in such case violated by allowing the proponent to show by the witness that the witness has “recently been brought under the influence of the other party.”

“The weight of authority,” says Greenleaf, “seems in favor of permitting the party to show that the evidence has taken him by surprise, and is contrary to the examination of the witness preparatory to the trial, or to what the party bad reason to believe he would testify, or that the Avitness had recently been brought under the influence of the other party and has deceived the party calling him.” — 1 Greenl. Ev. § 444.

The above quotation from Greenleaf Avas cited Avith approval in Campbell v. State, 23 Ala. 77.

By a series of questions, the state was allowed to show that the Avitness Bama Rushing, on Sunday before the trial, went to the jail where her father was confined, with the other members of the family, and remained there one hour and a half; that witness and her father only spoke a few words, and nothing whatever was said about the case or what witness’ would testify on the trial. This evidence was admissible as having a tendency to show that the witness had recently been brought under the influence of the .adverse party, and to strengthen the predicate that the witness was hostile to the state, and as justifying the leading questions allowed the state to offer this proof in laying the predicate, not for impeachment of the witness, but of showing hostility and surprise, and justifying leading questions embodying previous contrary statements to refresh the recollection and overcome lapses of memory possibly occasioned by the friendly relation of the witness with the defendant. The court kept within the rule already stated, and the appellant has no right to complain.

The predicate for the admission of the dying declaration showed that after the deceased had received a mortal gunshot wound, Avhich subsequently produced his death, he first expressed belief that he would get well, but soon thereafter he expressed it as his belief that he would die from the Avounds inflicted by the defendant. It was also shown that the deceased on the night he was shot, and after he had been carried home and placed on a bed, expressed himself thus: “I am shot and I am shot bad, and I will never get up from there.”' And it was shown that immediately after making these statements he made the statement about the facts of the difficulty admitted as a dying declaration. The predicate was sufficient for the admission of this evidence.—Gregory v. State, 140 Ala. 16, 37 South. 259.

The defendant offered to prove by the state’s witness Alf Sharpless, on cross-examination, that a short time after he heard the gun fire, the time being estimated by witness from two to four minutes, witness met the defendant coming in the direction of the house of the witness, at a point 100 yards away from defendant’s house, the place of the killing, and when defendant met witness he said to witness, “I have shot Asbury, but I had to' do it.” While this statement was a confession as to an undisputed fact in the case, it was also a self-serving declaration by which defendant sought to justify his conduct, and was not admissible at his instance unless it was a part of the res gestae. — Jones on Evidence, § 236; Martin v. Williams, 18 Ala. 190; James v. State, infra, 67 South. 773.

The declaration was made after the defendant had left the scene of the difficulty, and sufficient time had elapsed for thought, and for defendant to realize that he had committed a deed for which the law would call him to account, and Avas prima facie a retrospective narrative of a past occurrence, sufficiently removed in point of time and place to justify its exclusion. We entertain the opinion that it was not a part of the res geste of the shooting, and that the court ruled correctly.—Holland v. State, 162 Ala. 10, 50 South. 215; Nelson v. State, 130 Ala. 83, 30 South. 728; Lundsford v. State, 2 Ala. App. 38, 56 South. 89. This case is distinguishable from the cases of Stevens v. State, 138 Ala. 71, 35 South. 122, and James v. State, infra, 67 South. 773. In those cases, the declaration beld to be a part of the res gestae was made immediately after the shot was fired, and at the exact spot where the rencounter occurred, and was an involuntary exclamation or declaration produced by the act.

The statement of the defendant to his daughter Rosa Lee, “Go back to the kitchen and wash up the dishes; he is not going to bother you; you just pay no1 attention to him” — made before the shooting, was testified to by the defendant without objection and was not disputed by any other evidence in the case, and, if this evidence was admissible at all, the defendant was not prejudiced by the rulings of the court refusing to allow defendant to prove this undisputed fact by other witnesses.

We find no prejudicial error in the record, and the judgment of the circuit court is affirmed.

Affirmed.