Opinion
6 Div. 110.
December 14, 1971. Rehearing Denied January 25, 1972.
Appeal from the Circuit Court, Jefferson County, Joseph J. Jasper, J.
Morel Montgomery, Fred Blanton, Birmingham, for appellant.
An instruction by a trial court tantamount to a bald invitation to find a defendant "guilty" violates the concepts of State and Federal due process. Compare Bush v. Alabama, 282 Ala. 134, 142, 209 So.2d 416. A verdict of conviction cannot rest upon surmise, speculation, and conjecture. Parker v. Alabama, 280 Ala. 685, 198 So.2d 261; McCurdy v. Alabama, 42 Ala. App. 305, 162 So.2d 892; See Pate v. Alabama, 42 Ala. App. 334, 163 So.2d 645. Admission of testimony without probative value that defendant has been convicted of, charged with, or arrested for other offenses is highly prejudicial and requires a reversal. Messer v. Alabama, 45 Ala. App. 718, 236 So.2d 728; Anderson v. Alabama, 45 Ala. App. 653, 235 So.2d 902; Id. 235 So.2d 906; Crumley v. Alabama, 44 Ala. App. 692, 220 So.2d 862. Unless a defendant testifies and places his character for peace and quiet in issue, the State may inquire only into general character to the extent it affects credibility as a witness. Sorrells v. Alabama, 44 Ala. App. 48, 213 So.2d 617; Anderson v. Alabama, 44 Ala. App. 388, 210 So.2d 436; Robinson v. Alabama, 44 Ala. App. 206, 205 So.2d 524; Bond v. Alabama, 44 Ala. App. 65, 202 So.2d 173; See and compare: McGovern v. Alabama, 44 Ala. App. 197, 205 So.2d 247. Where a defendant has adduced some evidence tending to prove self-defense, it is competent for him to show a deceased was of known, violent, turbulent, bloodthirsty, revengeful, or dangerous character. Wilson v. Alabama, 31 Ala.App., 11 So.2d 563.
MacDonald Gallion, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
The corpus delicti in a homicide prosecution may be proven by circumstantial evidence. Coleman v. State, 276 Ala. 513, 164 So.2d 704, reversed on other grounds 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190; Green v. State, 263 Ala. 324, 82 So.2d 418; Brooks v. State, 248 Ala. 628, 29 So.2d 4; Crenshaw v. State, 225 Ala. 346, 142 So. 669. Where an accused testifies in his own behalf, he may be impeached, like any other witness, by showing his bad general character. Quinn v. State, 43 Ala. App. 4, 178 So.2d 232; Chambers v. State, 264 Ala. 8, 84 So.2d 342; Pitts v. State, 261 Ala. 314, 74 So.2d 232. When an accused offers proof of his good character, he puts his character into issue and the State may then show his bad character. Carson v. State, 128 Ala. 58, 29 So. 608; Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168; Gandy v. United States (5th Cir. 1968), 386 F.2d 516. When a witness testifies that accused's character is good, he may be asked, on cross examination, if he has heard of specific bad rumors, reports, and acts, and arrests, and convictions of the accused for the purpose of testing the value of the witness' testimony. Aaron v. State, 271 Ala. 70, 122 So.2d 360; Ellis v. State, 39 Ala. App. 325, 100 So.2d 725; Id. 267 Ala. 235, 100 So.2d 732; Kervin v. State, 254 Ala. 419, 48 So.2d 204; Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168; Bullington v. State, 13 Ala. App. 61, 69 So. 319; Thompson v. State, 100 Ala. 70, 14 So. 878; Ingram v. State, 67 Ala. 67. Where a trial judge fully and adequately charges the jury as to the law and their duties under it, it is not reversible error for him to also charge them as to the purpose of punishment for crime. Bush v. State, 282 Ala. 134, 209 So.2d 416.
The appellant has been convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for life. From this judgment he prosecutes this appeal.
The state's evidence tends to show that defendant killed one Perry Elam by shooting him with a pistol.
There were no witnesses to the actual shooting. The defendant testified he went to Elam's apartment the morning of May 22, 1968, in response to deceased's telephoned request. Elam asked him to sell color televisions, cigarettes and other articles for him and when defendant refused Elam called him a police pimp and other names, and hit him in the chest with a pair of bolt cutters. He testified:
"Well, I taken them away from him and throwed it to the floor * * * and by this time he come out with a pistol. * * * well, when he got up with the pistol, I just grabbed him and started tusseling over the pistol, the pistol went off, three or four times. I don't know exactly how many times the pistol went off. When we got through tugging, I taken the pistol away from him."
The evidence showed there were three bullet wounds in Elam's chest and one in the right leg. Defendant testified he never had his hand on the trigger. He stated deceased was approximately five feet, eleven inches tall and weighed between one hundred seventy and one hundred eighty pounds. Defendant was six feet, three inches tall and weighed two hundred, sixty-five pounds.
Under the evidence adduced whether the shooting was accidentally done or done in self defense was for the jury. The evidence was sufficient to support the judgment of conviction.
After the defendant had testified as a witness, police sergeant Smith, a defense witness, stated on cross examination that defendant's general reputation in the community where he lived was bad, but on redirect examination he stated defendant's reputation for truth and veracity was good and that he would believe him under oath in a court of law.
On cross examination the witness stated, over defense objections, that he had heard the defendant was convicted for violation of the state firearms act and presenting firearms at another in 1956; was arrested for transporting whiskey in 1958; was arrested and convicted for desertion and non-support of his family in 1960; was arrested for assault and battery in 1962; was arrested for theft of government property and robbery in 1968, and after hearing all these things, he would still say that his reputation for truth and veracity is good.
There are many cases holding that where a defendant has testified as a witness, the state may inquire into his general character or reputation and that such inquiry may be extended by the state or defendant to include his character for truth and veracity. Bedsole v. State, 274 Ala. 603, 150 So.2d 696; Mealer v. State, 242 Ala. 682, 8 So.2d 178; Huling v. State, 38 Ala. App. 598, 92 So.2d 47.
When a witness testifies to the good general character or reputation of defendant, or his good character for truth and veracity, "it is competent on cross-examination to test the witness's knowledge of this reputation or character of which he did testify by asking if he had not heard of specific acts of the defendant that tend to militate against his reputation or character." Helms v. State, 254 Ala. 14, 47 So.2d 276; Lowman v. State, 161 Ala. 47, 50 So. 43; Ellis v. State, 39 Ala. App. 325, 100 So.2d 725. There was no error in the court's admission of this evidence.
The court, in its oral charge, instructed the jury:
"Now, ladies and gentlemen, the purpose for punishment of crime is two-fold: First, to punish the person for his crime against society; and second, to deter others from committing like or similar offenses."
An exception was reserved to this portion of the oral charge.
Appellant insists in brief that this shortened version of the instruction approved in Bush v. State, 282 Ala. 134, 209 So.2d 416, amounted to the general charge for the state. The court's charge was a full and fair statement of the legal principles involved. We do not consider the last statement as an instruction to find defendant guilty.
We have carefully searched the record and find no reversible error.
The judgment is affirmed. Affirmed.