Opinion
5 Div. 790.
June 30, 1930.
Appeal from Circuit Court, Randolph County; W. B. Bowling, Judge.
Cullman Knight was convicted of distilling and possessing a still, and he appeals.
Reversed and remanded.
The following charges were refused to defendant:
"3. The Court charges the jury that the absence of sufficient satisfying evidence may be a ground of reasonable doubt of defendant's guilt.
"4. The Court charges the jury that in pronouncing the issues submitted to you in this case you should consider and weigh all the testimony, but that this does not mean that you should believe all or any part of it, but that it must be considered and given such weight as the manner of giving it in its intrinsic nature and the other testimony in the case entitles it to. This much and nothing more. This the jury must do, as this is the only way of performing your high sworn duty of rendering a true verdict according to the evidence.
"5. The Court charges the jury that a reasonable doubt might exist although there is no probability of the defendant's innocence from the testimony; and if the jury do not have an abiding conviction to a moral certainty of the guilt of the defendant, then in that event you should acquit the defendant.
"6. The Court charges the jury that if upon considering all the evidence you have a reasonable doubt about the defendant's guilt, arising out of any part of the evidence, then you should find the defendant not guilty."
Pruet Glass, of Ashland, for appellant.
It was error to refuse to allow defendant to show what part of the reward witness expected to receive. Cox v. State, 22 Ala. App. 102, 112 So. 899. The state should not have been allowed to reopen its case after arguments had been made. Charge 3 was erroneously refused. Gaston v. State, 161 Ala. 37, 49 So. 876; Carwile v. State, 148 Ala. 585, 39 So. 220; Fealey v. Birmingham, 15 Ala. App. 367, 73 So. 296. And charge 4. Hurd v. State, 94 Ala. 101, 10 So. 528; Davidson v. State, 167 Ala. 68, 52 So. 751, 140 Am. St. Rep. 17. And charge 5. Smith v. State, 165 Ala. 74, 51 So. 632; Carroll v. State, 130 Ala. 99, 30 So. 394; Davis v. State, 131 Ala. 10, 31 So. 569. And charge 6. Townsend v. State, 18 Ala. App. 242, 90 So. 58; Black v. State, 1 Ala. App. 168, 55 So. 948; Turner v. State, 124 Ala. 59, 27 So. 272; Russell v. State, 201 Ala. 572, 78 So. 916; Veasey v. State, 20 Ala. App. 478, 103 So. 67.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
J. W. Kilgore was one of the principal witnesses for the state, and if his testimony is to be believed, beyond a reasonable doubt, fastened guilt upon this defendant. Upon cross-examination, this witness was asked what part of the $50 informer's fee fixed by law he expected to get. The state's objection was sustained to this question and defendant excepted, the court adding: "That $50.00 reward is offered by the State, payable to the person who catches the still." The inquiry was not as to whether the fee would be paid; that fact, of course, was and is fixed by law. But the jury was entitled to know what part, if any, the witness expected as tending to show his pecuniary interest in the prosecution. The rule in this state is that any fact showing interest, bias, or prejudice of a witness may be proved in any legal mode. Allen v. Fincher, 187 Ala. 599, 65 So. 946; Cox v. State, 22 Ala. App. 102, 112 So. 898.
It was not error for the court to refuse to allow the defendant to show that there were other "still sites" where whisky had been made around and in close proximity to the home of Dan Johnson near the place where the still here involved is claimed to have been located. This evidence was illegal, irrelevant, and immaterial. Johnson was not a party to this prosecution, and even if he had been, the fact, if it be a fact, that he was interested in other stills would not affect this case.
After the state and defense had announced "closed," the solicitor had made his opening argument, and the defendant's counsel had closed their arguments, over the objection and exception of defendant the state was allowed to reopen its case and to examine several witnesses touching the impeachment of the testimony of one of the witnesses for defendant, whose testimony had not been theretofore denied. This action of the court was very, very irregular and was calculated to prejudice the defendant's case, but much must be left to the discretion of the trial court in the direction of trials before him. While, as we have said, the proceeding was irregular, we cannot from this record hold that the discretion was abused. However, we may add, it is only in rare cases that such proceedings should be allowed. The orderly administration of justice is of the highest importance in commanding a due respect for the courts and the law.
Refused charge 3 has been approved in Fealy v. City of Birmingham, 15 Ala. App. 367, 73 So. 296; Gaston v. State, 161 Ala. 37, 49 So. 876; Carwile v. State, 148 Ala. 576, 39 So. 220.
Refused charge 4 is not the charge approved in Hurd's Case, 94 Ala. 101, 10 So. 528, and affirmed in Davidson's Case, 167 Ala. 68, 52 So. 751, 140 Am. St. Rep. 17, and many other cases there cited. The charge in the Hurd Case is the law, and refused charge 4 in this case is a part of the argument used by the Supreme Court in sustaining the charge. Charges which are arguments are properly refused.
Refused charge 5 has been approved in Smith's Case, 165 Ala. 74, 51 So. 632, and authorities there cited.
Refused charge 6 states a correct proposition of law, but is substantially covered by other charges.
For errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.