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finding no abuse of discretion for trial court to allow sheriff, who was also witness, to remain in courtroom despite sequestration order where defendant declined to file affidavit of prejudice and sheriff was officer of court
Summary of this case from State v. ValverdeOpinion
4 Div. 482.
April 3, 1917.
Appeal from Circuit Court, Covington County; A.B. Foster, Judge.
Pink Jordan was convicted of perjury, and he appeals. Reversed and remanded.
The perjury is alleged to have occurred in the trial of State v. Mitchell Wells, for killing one B. Sager, and the perjury alleged is that witness falsely swore on that trial; that B. Sager drew a nickel-plated weapon, a pistol, and pointed it at Wells just prior to the shooting of Sager by Wells. The other facts sufficiently appear.
Baldwin Murphy, of Andalusia, for appellant. W.L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen., for the State.
The record of the indictment and judgment of the law and equity court in the case of State v. Mitchell Wells was properly admitted in evidence, the indictment for the purpose of showing that that court had jurisdiction to try Mitchell Wells, and the judgment for the purpose of showing the trial. Williams v. State, 68 Ala. 551; Smith v. State, 103 Ala. 69, 15 So. 866.
The bill of exceptions states that the record of the indictment was offered in evidence, and the objection to the admission of this evidence was a general objection, no grounds being stated; and the question of the identity of the record is not presented. Stevenson v. Moody, 85 Ala. 33, 4 So. 595.
The minute entry showing the judgment constitutes the final record of the judgment. Code 1907, § 5733.
As this case must be reversed on another ground, we think it proper to suggest that the court should so limit the effect of the evidence afforded by the judgment to the purpose of showing the trial of the case of State v. Mitchell Wells, and that it should not be considered as a circumstance tending to show that the defendant swore falsely on that trial. Estill v. State, 38 Tex. Cr. R. 255, 42 S.W. 305.
If the issues on the trial for perjury involve the same issues that were litigated in the trial in which the perjury is alleged to have been committed, any evidence that was admissible in the first trial would be competent on the trial for perjury. Reg. v. Harris, 9 Cox C. C. 503; 30 Cyc. 1443, sub. 2. Where, however, the indictment for perjury relates to a subordinate evidential matter, the issue should be limited to this matter and the res gestæ of the fact involved in the issue. Chitwood v. U.S., 101 C.C.A. 342, 178 Fed. 442.
The defendant is charged with having falsely sworn that Sager "reached with his right hand to his hip pocket and pulled therefrom a nickel-plated gun and presented it at the said Mitchell Wells just before the said Mitchell Wells fired the shot that killed" Sager. The state's witness Clements testified on the trial of this case, that the defendant was not present on the occasion of the killing of Sager by Wells, that witness saw the difficulty, and that Sager did not reach back to his hip pocket and draw from it a pistol and present it at Wells; that four or five shots were fired, but the evidence does not show which of these shots took effect.
It was the defendant's right to impeach the witness by showing he testified on the trial of Wells that only three shots were fired on the occasion. This was of the res gestæ of the fact under investigation, the drawing of a pistol by Sager.
The court also erred in sustaining the solicitor's objection to the question to the witness Collins on cross-examination, eliciting evidence as to whether or not the witness ran away from the place of the difficulty when the shooting began. If the witness was frightened or excited by the occurrence to such extent that he ran away from the place of the difficulty, this had some tendency to affect the probative force of his testimony. While the scope of the cross-examination of witnesses as to irrelevant matters for the purpose of testing the accuracy and credibility of testimony is a matter within the discretion of the trial court, such discretion does not extend to relevant facts, and to deny the defendant the right to cross-examine as to such facts is reversible error. Snell v. Roach, 150 Ala. 469, 43 So. 189.
The book entries made by the witness Collins and the fact that defendant drew a full day's pay for the day of the alleged difficulty had a tendency to show that defendant was not present on the occasion of the shooting, and the ruling of the court as to these phases of the evidence was free from error. Shirley v. South. Ry. Co., 198 Ala. 102, 73 So. 430.
We find no other error in the record.
Reversed and remanded.