4 Div. 507.
June 26, 1930.
M. A. Owen, of Elba, and M. S. Carmichael, of Montgomery, for appellant.
When one party introduces immaterial testimony, the other party may cross-examine on such immaterial testimony. L. N. R. Co. v. Quinn, 146 Ala. 330, 39 So. 756. Irrelevant or immaterial testimony may be rebutted. Winslow v. State, 92 Ala. 78, 9 So. 728. The discretion of the trial court does not go so far as to deny the development on cross-examination of additional facts brought into the case by the opposing party. Payne v. Roy, 206 Ala. 432, 90 So. 605; Wilson v. State, 195 Ala. 679, 71 So. 115; Brooks v. State, 21 Ala. App. 479, 109 So. 887.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
It appears from the opinion of the Court of Appeals that one Jones, who had testified for the defendant, upon recross-examination by the state, said: " 'Mr. Blair is in the penitentiary I suppose.' No objection — no exception. Defendant then asked: 'He is in the penitentiary about a killing case, isn't he?' The court sustained the state's objection to this question. The question called for evidence irrelevant to the issue being tried."
When the state brought out this evidence, whether relevant or not, the defendant had the right to cross-examine as to same. L. N. R. Co. v. Quinn, 146 Ala. 330, 39 So. 756; L. N. R. Co. v. Hill, 115 Ala. 334, 22 So. 163; Winslow v. State, 92 Ala. 78, 9 So. 728; Valin v. McKerreghan, 104 Mich. 213, 62 N.W. 340.
We therefore think and so hold that the opinion of the Court of Appeals discloses error upon the face of same. We may add, by way of suggestion, that the question asked was not irrelevant after the witness had stated that Blair was in the penitentiary. It seems that this defendant was indicted jointly with others, including one Blair, and the fact that Blair was then in the penitentiary tended to impress the jury with the fact that he had been convicted for the same offense, and that this defendant had the right to show he was there for some other offense.
The writ is awarded, the judgment of the Court of Appeals is reversed, and the cause is remanded to said court for further consideration in conformity with this opinion.
All the Justices concur.