CREWS v. STATE

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Docket Number

5 Div. 694.

Attorney(S)

Pruet Glass, of Ashland, for Crews. It was error to permit the state to show, on cross-examination of witness Campbell, that state's witness Thrower had caught Campbell's son violating the prohibition law, and had helped to catch quite a number for making whisky. Lakey v. State, 206 Ala. 180, 89 So. 605; Thompson v. State, 20 Ala. 63; Jones v. State, 17 Ala. App. 394, 85 So. 830; Berney v. State, 69 Ala. 235; Gassenheimer v. State, 52 Ala. 318; Henson v. State, 114 Ala. 28, 22 So. 127; Rogers v. State, 12 Ala. App. 200, 67 So. 781. Charge 5 was correct and should have been given. Gay v. State, 19 Ala. App. 238, 96 So. 646. Likewise charge 10. May v. State, 16 Ala. App. 541, 79 So. 677. And charge 14. Elliott v. State, 22 Ala. App. 32, 111 So. 762. And charge 17. Stevens v. State, 6 Ala. App. 6, 60 So. 459; Fetner v. State, 22 Ala. App. 128, 113 So. 467. Charge 19. McHan v. State, 20 Ala. App. 117, 101 So. 81; Kilgore v. State, 19 Ala. App. 181, 95 So. 906; Estes v. State, 18 Ala. App. 606, 93 So. 217. Charges B, C, and D. Code 1923, §§ 3307, 4623; Brasher v. State, 21 Ala. App. 463, 109 So. 369. Charlie C. McCall, Atty. Gen., for the State. Brief did not reach the Reporter. The Court of Appeals certifies the following question to the Supreme Court: To the Supreme Court of Alabama: Under provisions of section 7311, Code 1923, I hereby certify the following question, as an abstract proposition, to the Supreme Court, as the judges of this court are unable to reach an unanimous conclusion or decision thereon: Question: Is the following quoted charge good or bad, in a criminal case, where one or more state witnesses are examined? "The court charges the jury that, if the evidence of the state consist in the statements of a witness, or witnesses, of the truth of which the jury have a reasonable doubt, they cannot convict the defendant on such evidence, although they may not believe the testimony of defendant's witnesses." C. R. Bricken, Presiding Judge, Court of Appeals. The Supreme Court makes the following response: Response. To the Honorable Court of Appeals of Alabama:

Judges

SOMERVILLE, J. (answering the foregoing inquiry).

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CREWS v. STATE.

SOMERVILLE, J. (answering the foregoing inquiry).

We are of the opinion that the charge in question is, upon its face, subject to objection, and may be properly refused. We think, also, it could be given without error. The objection to its giving is stated in Koch v. State, 115 Ala. 99, 105, 22 So. 471, 473, where it is said:

"Such a charge is not in keeping with the well-established procedure for the proper determination of the issues in a cause, in which a party always invites the jury to believe, and avouches the truth of the evidence he introduces. He may not, therefore, in an instruction he asks, predicate a verdict in his favor upon a disbelief by the jury of his own evidence."

See, also, McConnell v. Adair, 147 Ala. 599, 41 So. 419, and Love v. State, ante, p. 66, 117 So. 400.

All the Justices concur.

CREWS v. STATE.

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