Turner v. State

Opinion After Remandment by Supreme Court. The ruling of the trial court upon which we heretofore predicated a reversal of the judgment of conviction in this case having been held, on petition for certiorari etc., not erroneous by the Supreme Court, and the cause having been remanded to us for further consideration, we will proceed to treat the exceptions not considered upon original submission, which seem to us worthy of mention.

While we have carefully examined the entire record and proceedings, only those matters discussed by appellant's able counsel in his brief filed here, after remandment of the cause, are thought necessary to be treated by us.

Appellant complains that the state was allowed, over his objection, with exception duly reserved, to ask its witness Fred S. White, on redirect examination, this question: "Q. Why did you leave that community?" His intention being that the said question called for the witness' uncommunicated and secret motive or intention, etc.

Appellant's counsel confidently asserts that "any school boy ought to know that this question was illegal and its needs neither citation of authority nor argument to demonstrate that the question and answer were illegal." Well, perhaps.

It may be unfortunate that we are not so easily persuaded. But to us it seems that the fact that appellant had, through cross-examination of this state's witness Fred S. White, "called for statements by witness" as to "why he left that community," it was permissible for the state to show on redirect examination of this witness why he went away; and, permitting the question quoted above, appears, and we hold it was, but following this rule of the law of evidence. Sims v. State, 146 Ala. 109, 41 So. 413.

Appellant next contends that there was error to reverse in permitting the state, over his objection, etc., to ask its witness Ruth Allen, on redirect examination, this question: "Q. I will ask you to state whether you told your father about it?"

Ruth Allen was sworn and examined as a witness for the state in rebuttal.

Mrs. Bulah Smith, a defense witness, on cross-examination, denied making certain statements. Ruth Allen was put on the stand by the state, in rebuttal, in an attempt to prove that Mrs. Bulah Smith had made such statements.

Upon cross-examining Ruth Allen, the appellant asked her whom was the first person she had told about the conversation she had with Mrs. Bulah Smith; and, if that morning was not the first time she had told it, etc.

In response to this cross-examination of its witness Ruth Allen, the state was permitted to propound to her the question we have quoted above. In this we think, and hold, there was no error.

It was but permitting the "state on redirect examination may examine [the] witness as to matter injected into [the] case on cross-examination." Jones v. State, 22 Ala. App. 141,113 So. 478.

What we have said disposes of the only exceptions, or rulings, not obviously free from prejudicial error. So upon what we have here written, and upon authority of the decision of the Supreme Court in the case of Ex parte James Turner v. State, 224 Ala. 5, 140 So. 447, the judgment of conviction is affirmed.

Affirmed.