Opinion
6 Div. 753.
February 18, 1975. Rehearing Denied March 18, 1975.
Appeal from the Circuit Court of Jefferson County, Charles Nice, J.
Herbert W. Stone, R. B. Jones, Birmingham, for appellant.
A witness to another's good general reputation may not be cross examined as to his knowledge of specific bad acts by such other. Echols v. State, 256 Ala. 389, 55 So.2d 530 (1951); McElroy, The Law of Evidence in Alabama, (2nd ed.) Vol. 3, Sec. 426.01(9). A confidential communication between spouses is privileged from disclosure. Owen v. State, 78 Ala. 425 (1885); 10 A.L.R.2d 1389; McElroy, The Law of Evidence in Alabama, (2nd ed.) Vol. 1, p. 257, Sec. 103.01(1). Title 15, Section 311, Code of Alabama, approved on September 28, 1915, of Acts 1915, p. 942 which changed the common-law rule by making one spouse a competent witness against the other in criminal cases does not affect the rule against disclosure of private marital communications. 8 Wigmore, Evidence, Section 2334, p. 645; Mercer v. State, 40 Fla. 216, 24 So. 154 (1898); Ex parte Benville, 58 Fla. 170, 50 So. 685 (1909); 97 C.J.S. Witnesses §§ 266, 267 269, 28 So. Digest Witnesses, Section 188(1). A character witness who has testified to an accused's good character and reputation may properly be cross-examined as to whether he has heard of certain acts of misconduct on the part of the accused, such testimony going to the credibility of the witness and the weight of his testimony, however, such questions are improper unless the inquiry is limited to those rumors heard prior to the commission of the offense charged in the indictment. Houston v. State, 50 Ala. App. 536, 280 So.2d 797 (1973).
William J. Baxley, Atty. Gen., Montgomery, and David L. Weathers, Asst. Atty. Gen., Birmingham, for the State, appellee.
A character witness who has testified to an accused's good character and reputation may properly be cross examined as to whether he has heard of certain acts of misconduct on the part of the accused, such testimony going to the credibility of the witness and the weight of his testimony. Flournoy v. State, 34 Ala. App. 23, 37 So.2d 218; Echols v. State, 256 Ala. 389, 55 So.2d 530. The husband and wife may testify either for or against each other in criminal cases, but shall not be compelled so to do. Title 15, § 311, Code of Alabama, 1940, as Recomp. 1958; McCoy v. State, 221 Ala. 466, 129 So. 21.
First degree arson: sentence, fifteen years imprisonment.
On cross examination of a defense character witness the assistant district attorney, over appropriate objection, asked:
"If prior to September the 18th of 1971 had you heard those things, Mrs. Davis, would that change your opinion as to his general reputation and character in the community?" (R. 229)
and
"But if you had heard those things prior to September the 18th of 1971, and comparing those things, contrasting those things with what you had heard prior to September the 18th of 1971 which caused you to say in your opinion his reputation was good, would having heard those things change your opinion?" (R. 232)
Both objections were overruled. These rulings were erroneous. In Houston v. State, 50 Ala. App. 536, 280 So.2d 797, we find:
"Each of these two questions elicited testimony tending to show the witness's concept of 'good reputation' as opposed to the fact of 'good reputation,' vel non. These cases, and numerous others, unequivocally assert that a character witness's personal definition of 'good reputation' is immaterial. * * * "
See also Lowery v. State, 51 Ala. App. 387, 286 So.2d 62.
Under the received interpretations of Supreme Court Rule 45 we cannot say that overruling of the objections did not "probably injuriously [affect a] substantial right" of the appellant. This, though we might consider that no other reasonable jury, properly instructed, with the instant questions and their answers excluded, would have come to a different verdict. Cf., Mississippi Rule 11 (1952) 215 Miss. 601; State v. Dutton, 83 Ariz. 193, 318 P.2d 667; Vanderbilt, Minimum Standards of Judicial Administration, p. 559.
Propter aliud examen, we consider that objection to Arnold's divorced wife's testifying against him goes into an area — not of statutory operation under Code 1940, T. 15, § 311 — but of common law privilege accorded interspousal communications. McElroy, Evidence in Alabama (2d ed.) § 103.01(1). It would seem crucial to determine whether or not the appellant would have spoken in an incriminating fashion relying on the relationship as one of confidence inter sese.
"The husband and wife may testify either for or against each other in criminal cases, but shall not be compelled so to do."
Here the quondam wife heard a telephone call by the husband. Was this a communication to her? See North v. Superior Court, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, 57 A.L.R.3d 155.
The judgment below is
Reversed and remanded.