Opinion
7 Div. 843.
October 11, 1945.
Certiorari to Court of Appeals.
Petition of the State of Alabama, by its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Sylvester Wright v. State, 23 So.2d 517, wherein a judgment of conviction for assault with intent to murder was reversed.
Writ denied.
Wm. N. McQueen, Acting Atty. Gen., and Chas. M. Cooper, Asst. Atty. Gen., for the petition.
Where a witness has testified to the good character of defendant on trial, the solicitor may inquire into the witness' knowledge of defendant's conviction of prior offenses to test witness' estimate of good character. Mullins v. State, 31 Ala. App. 571, 19 So.2d 845; Hill v. State, 210 Ala. 221, 97 So. 639; Way v. State, 155 Ala. 52, 46 So. 273. It is harmless error to overrule defendant's objection to an improper question to his character witness where the answer is favorable to defendant. Ford v. State, 20 Ala. App. 663, 104 So. 838. Where improper question is asked and not objected to before answer, the court will not be put in error for refusing to exclude if it is responsive to the question. Hill v. State, 194 Ala. 11, 69 So. 641, 2 A.L.R. 509.
Ross Blackmon, of Anniston, opposed.
A character witness cannot speak of particular acts or conduct of person inquired about, but can merely state his general reputation in the neighborhood in which he lives, and cross-examination of such witness must be conducted within the limits of such inquiry. Gray v. State, 21 Ala. App. 409, 108 So. 658; Way v. State, 155 Ala. 52, 63, 46 So. 273; Stewart v. United States, 70 App.D.C. 101, 104 F.2d 234; Moulton v. State, 88 Ala. 116, 118, 6 So. 758, 6 L.R.A. 301; Rogers v. State, 16 Ala. App. 58, 75 So. 264; Lewis v. State, 13 Ala. App. 31, 37, 68 So. 792; Prater v. State, 104 Tex.Cr.R. 669, 284 S.W. 965. It was prejudicial for the solicitor to state that defendant had served a term in the penitentiary for assault to murder, and that he occasionally broke into the penitentiary. Gallman v. State, 29 Ala. App. 264, 195 So. 768; Berger v. U.S., 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; Taylor v. State, 22 Ala. App. 428, 116 So. 415.
The Court of Appeals reversed the judgment of conviction for errors alleged to have been committed by the trial court in respect to the cross examination of defendant's character witness Lloyd, and seems to have rested the reversal more particularly on the overruling of the defendant's motion to exclude the answer of the witness made in response to the solicitor's statement, "Just occasionally breaks in the penitentiary?" The witness answered, "I don't know about that." After the answer was made, defendant's counsel stated: "We object to that if your honor please and move to exclude it." The Court of Appeals treats the motion as one to exclude the answer. This answer did not confirm the solicitor's statement and proved nothing.
The statement of the solicitor in the form of a question was objectionable, not only because it was a statement of a fact, but also argumentative in form. We are of opinion that the previous statement of the solicitor, "You didn't know that he had served a term in the State Penitentiary for assault with intent to murder?" followed by the answer of the witness, "Yes sir," was proof of an independent fact, not permissible under the rule which permits and limits the cross examination of a character witness to facts which "shed light on the weight and credibility * * * of the character witness." Pierce v. State, 228 Ala. 545, 154 So. 526, 527; Osborn v. State, Ala.App., 22 So.2d 538. Under the rule and its limitations it was not permissible to prove the fact of such conviction in another case as a circumstance going to show guilt or to impeach the defendant's character or shed light thereon. The ruling of the circuit court permitting the proof of this independent fact was error, justifying the reversal of the judgment by the Court of Appeals. Moulton v. State, 88 Ala. 116, 6 So. 758, 6 L.R.A. 301; Way v. State, 155 Ala. 52, 46 So. 273.
Affirmed.
GARDNER, C. J., and FOSTER, LIVINGSTON, STAKELY, and SIMPSON, JJ., concur.