After Remandment. On the original submission this case was reversed by this court for the error there pointed out, in which we held that the testimony of the witness, Joe Percy Bragg, was not sufficiently corroborated to authorize its submission to the jury, and that, therefore, the defendant was entitled to the affirmative charge. On certiorari to the Supreme Court, it was held that this court was in error in that particular, and the cause was remanded for further consideration. It now becomes necessary for us to consider other questions presented in the record.
On the trial the defendant requested the court in writing to give charge 24, as follows: "The Court charges the jury that if you have a reasonable doubt as to the truth of the testimony of the witness, Joe Percy Bragg, then this defendant cannot be convicted." Other charges, notably charges 18, 27, 37, and 43, embodying the same principle, were requested by the defendant and marked refused. As we see it, it will not be necessary to pass on these charges separately, as the charge above quoted states the principle as clearly as it could be stated applicable to the case at bar.
The evidence for the state consisted of the testimony of the witness, Joe Percy *Page 429 Bragg, and other testimony tending solely to such corroboration of the testimony of the witness, Bragg, as would authorize the jury to consider his testimony in making up its verdict. Without the testimony of the witness, Bragg, there was no testimony in the case which would have authorized a conviction, and therefore the one question presented and the contention of the parties in the court below was as to the truthfulness of this evidence which alone connected this defendant with the crime charged. Joe Percy Bragg was the self-confessed principal in the commission of a foul crime committed at midnight under such circumstances as in themselves would call for the closest scrutiny, and, while it has now been held by the Supreme Court that there was some slight corroboration of his statement sufficient to allow its consideration by the jury, his testimony was otherwise seriously impeached by statements out of court different to that made by him on the trial. There was no other witness in the case who testified to any fact or facts which would warrant the conviction of this defendant of the crime with which he is charged, and it is admittedly a fact that without the testimony of Bragg this defendant cannot be convicted. So that, the real point of contention on the trial of this case was as to whether the testimony of Bragg could be believed beyond a reasonable doubt.
In a criminal case a prima facie case of guilt does not generally rebut the presumption of innocence or shift the burden of proof, and until the state proves in the first instance beyond a reasonable doubt the facts which constitute the offense, the accused is not required to establish his innocence by exculpatory evidence. Such is the expression of the general rule as laid down by Clopton, Judge, in the case of Segars v. State, 86 Ala. 59, 5 So. 558. Such is a succinct statement of the age old rule applicable in prosecutions of persons charged with the commission of crime.
Following that principle the charge above set out, or similar charges embodying the same principles, have been the subject of many decisions of this court and of the Supreme Court.
In Washington et al. v. State, 58 Ala. 355, Stone, Judge, in commenting upon a charge which reads, "such corroborating testimony, in order to avail anything, must be of a fact tending to show the guilt of defendants," said, "the charge should have contained a clause, somewhat to this effect: If the question of guilt of the accused depends on the testimony of this witness; or, to this effect: A reasonable doubt in the minds of the jury of the truth of this witness' testimony." Following this case, the Supreme Court in McDaniels v. State,162 Ala. 25, 50 So. 324, applied this rule to the testimony of a corroborating witness where the corroboration of an accomplice depended solely upon the testimony of one witness. In Segars v. State, 86 Ala. 59, 5 So. 558, it is held "the jury are not authorized to find the defendant guilty on the evidence of a single witness, upon whose testimony the question of guilt depends, if they have a reasonable doubt of the truth of his statements."
In Baxley's Case, 18 Ala. App. 277, 90 So. 434, certiorari denied 206 Ala. 698, 90 So. 925, this court noted some decisions in which the charge here under consideration was held to be misleading in view of the fact that the conviction of the defendant did not depend upon the testimony of one witness, in which connection was cited Price's Case, 10 Ala. App. 67,65 So. 308, Conner's Case, 10 Ala. App. 206, 65 So. 309, McConnell v. Adair, 147 Ala. 599, 41 So. 419. As was pointed out in the Baxley Case, supra, there were several witnesses for the state who testified as to the facts of the killing and several witnesses for the defendant who testified as to the details of the homicide. It was there said that the jury might have disbelieved the exculpatory testimony of defendant's witnesses, but, if they disbelieved the testimony of defendant's witnesses tending to establish self-defense, they could and should have found the defendant guilty. Upon that state of the evidence, the charge was held to be misleading. Since the Baxley Case, the question has been before this court several times, notably in the case of Gilbert v. State, 20 Ala. App. 565, 104 So. 45, where it was said, "as stated hereinabove, there can be no controversy that the conviction of this defendant rested solely upon the testimony of said state witness Dave Upton, and that in the absence of his testimony the duty would have rested upon the court to direct a verdict in favor of defendant, and to order his discharge. This being true, refused charge 3 was in point and should have been given." To the same effect is the decision in Clayton v. State, 23 Ala. App. 150, 123 So. 250. *Page 430
The charge here under consideration does not come within the influence of the cases of Koch v. State, 115 Ala. 99,22 So. 471, Boozer v. Jones, 169 Ala. 481, 53 So. 1018, and Love v. State, 218 Ala. 66, 117 So. 400. In those cases, the facts and the charges are entirely different; there, there were other witnesses to the details of the crime; here, the conviction of the defendant depends solely and alone upon the testimony of the witness, Bragg, and if the jury did not believe his testimony beyond a reasonable doubt, he could not be convicted, and the defendant was entitled to have the jury so instructed.
The defendant requested the court to give the following charge, which was in writing: "The court charges the jury that the letters written to the Teachworth woman by the defendant, in evidence, and the pictures offered in evidence are wholly insufficient, standing alone, to authorize an inference that the defendant employed the negro Percy Bragg to shoot or kill the defendant's wife." It is insisted that this was a charge on the legal effect of the letters written by the defendant to the Teachworth woman, and that under section 9509 of the Code of 1923 he was entitled to have this charge given. The charge, however, is abstract. The evidence does not stand alone. It was introduced generally for the consideration of the jury in connection with all the other evidence in the case, and for this reason, if for no other, the charge was properly refused.
After the police officers testified to finding the defendant's pistol lying on the bed in a holster on the night the crime was committed when they went there to investigate the case, the state offered in evidence the pistol identified as that of the defendant. The officers then testified to recovering the bullets that wounded Mrs. Slayton from the bed where Mrs. Slayton was lying at the time she was shot. The officers testified they got one bullet out of the pillow and one out of the mattress, and that they turned those bullets over to Mr. Jack Stewart, an expert on ballistics; that they also turned the pistol over to him. Whereupon, the defendant propounded the following question to the witness: "Did Mr. Stewart give it as his opinion that these bullets were fired from defendant's revolver?" The state objected to this question, objection was sustained, and the defendant reserved an exception. The court was not in error in this ruling. The testimony called for was clearly hearsay.
When Joe Watts was being examined as a witness, the state, over objection and exceptions by the defendant, was permitted to go into detailed inquiry regarding the sending of a telegram by the said Joe Watts to the accomplice, addressed to him in care of Mr. McHugh, in Decatur, Ala., on Wednesday before the alleged crime charged in this indictment was committed. This inquiry entered into the details of the sending of this telegram, where it was sent from, to whom it was sent, how it was addressed, who told him to send it, who gave him the money to prepay for the sending, when the money was given to him, and, finally, the telegram itself was introduced in evidence. All of which was over the earnest insistences, objections, and exceptions of the defendant; and it is nowhere apparent in the evidence that the defendant was even remotely connected with the sending or receiving of the telegram. All of this testimony was clearly irrelevant and immaterial to any issue in the case, and did not tend in the remotest degree to connect this defendant with the commission of the crime, nor did it tend to corroborate the witness Joe Percy Bragg on any material fact in the case. The admission of this testimony was therefore error, and the only question presented to us here is: Was it such error as entitles the defendant to a reversal?
We have held time and time again that the introduction of immaterial evidence is not error to a reversal unless it appears that the error was injurious or prejudicial to the substantial rights of the defendant. This we have done, construing and applying rule 45 of the Supreme Court, and such would be the ruling here but for the fact that the persistent inquiry pursued by the state with reference to the sending of the telegram emphasized the importance of such testimony by the court, thereby injecting into the case an immaterial issue which may or may not have influenced the jury in the final determination of the question of guilt or innocence in a case such as the one at bar.
The mere fact that the court refuses on objection to exclude testimony delivered before them is evidence to the jury that such testimony is of some importance and tends to prove the guilt of the *Page 431 accused whether such is the actual case or not. De Phue v. State, 44 Ala. 32. It is held in Diggs v. State, 49 Ala. 311, that the admission of irrelevant evidence is an error which will work a reversal of the judgment unless the record clearly shows that no injury could possibly have resulted. And in Jackson v. State, 52 Ala. 305, it is held that where illegal evidence has been admitted a reversal must follow unless the court can clearly see that the illegal evidence could not have prejudiced defendant, and this although the appellate court may not be able to see that injury resulted from the error. Williams v. State, 83 Ala. 16, 3 So. 616. To the same effect are Ridgell v. State, 1 Ala. App. 94, 55 So. 327; Phillips v. State, 3 Ala. App. 218, 57 So. 1033; Watson v. State, 8 Ala. App. 414,62 So. 997; Powe v. State, 19 Ala. App. 215, 96 So. 370,371. In the latter case it is said, "where error is shown to have been committed by a trial court, injury is presumed, and the burden and obligation to subsequently remove and to wholly neutralize the prejudicial effect wrought by the admission, over the adversary's seasonable objection and exception of such illegal matter, is upon the party inducing the admission of such illegal matter as evidence in the cause." Watson v. Adams,187 Ala. 490, 65 So. 528, Ann.Cas. 1916E, 565; Davis v. State,18 Ala. App. 482, 93 So. 269; Booker v. State, 23 Ala. App. 78,121 So. 3; Halford v. State, 24 Ala. App. 540, 137 So. 679.
Such was the law prior to the adoption of Supreme Court Rule 45 which now places the burden on the appellant of showing error probably injuriously effecting his substantial rights.
Insistence is made that the court committed reversible error in permitting the solicitor in the cross-examination of the defendant, when he was being examined as a witness, to ask him certain questions as to his meaning and motive in writing certain things in the letters which defendant had written to the Teachworth woman. It has long been the law that the undisclosed motive or intent with which an act is done or refused to be done cannot be testified to by a witness on direct examination, but, under the broad discretion given to trial courts, the cross-examination of a witness takes a very broad scope, and, unless it appears that this discretion has been abused, the trial court will not be held in error for permitting it.
For the errors above pointed out, the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
RICE, J., dissents.
On Rehearing.