Stephens v. State
Stephens v. State
Opinion of the Court
The exceptions indicated by assignments of error 1, 2, and 3 are not insisted upon, the points therein raised being settled by the following-cases: Evans v. State, 82 South. 625; 1 Harris v. State (Sup.) 82 South. 450; 2 Chambers v. State (June 10, 1919), 84 South. 638. 3 The exceptions indicated by assignments of error 4 and 5 have been settled adversely to appellant’s contention in the case of Al Henry Vaughn v. State, ante, p. 383, 84 South. 879.
“Gentlemen of the jury, I have come to the conclusion that the testimony here in reference to Mrs. Davidson or some woman, with reference to Mr. Stephens’ connection with her, is incompetent, .and therefore I exclude all that from you. That testimony is excluded, and you will not consider it. For instance, the conversation on Wednesday night with reference to that matter before the killing and going down to Attalla on the train, and the association of the defendant with this man who was here, all that matter is excluded from you, and it will have no impression on you. Forget it.”
And further on, the court again said:
“I exclude this matter from you: That one night they saw some one pass up there; the conversation Stallings had one night after supper when they met the train up there; that has nothing to do with this case, and don’t consider it.”
And further on the court said:
“Gentlemen of the jury, don’t consider any of that testimony about anybody being at the oil mill with a long coat on or a slouched hat. That has nothing to do with this case.”
The testimony was admittedly illegal, irrelevant, and incompetent, and its only tendency was to raise in the minds of the jury a suspicion that the defendant was having illicit relations with another man’s wife, or that he was “stalking” deceased for some unlawful purpose, and was therefore, highly prejudicial to the rights of the defendant on his trial. We doubt if under the facts in this case, the line of inquiry being given the prominence and scope and emphasis it was, if the court could have so withdrawn it from the jury as not to have injured the defendant. At any rate, the language used by the court in excluding the illegal testimony is too general and indefinite to cure the error in this case. “Necessarily, to a large extent (as has * * been held by the courts), each case presenting this question must be "decided upon the merits of the particular case under review, rather than on any general rule.” Wills v. State, 15 Ala. App. 454, 73 South. 766. It may be said, however, in line with i the Wills Case, supra, that:
“It is a matter of general, as well as judicial," knowledge that it is very difficult to eradicate from the minds of a jury the injurious impressions created by the admission of illegal testimony,” .
Certainly is this so where, as in this case, the tendencies of the testimony on an immaterial issue was so interwoven with the testimony for the state as to be hard of separation and tending to hold up to the jury, during the trial, the defendant as being a man who, though charged with the duty of preserving the persons and property of the town, was interfering with another man’s home.
It was held in Watson v. Adams, 187 Ala. 490, 499, 65 South. 528, 530 (Ann. Cas. 1916E, 565), to be “settled in this state that the admission of illegal evidence, which is subsequently excluded and the jury instructed to disregard such evidence, cures the error, and vitiates the exception reserved to its admission,” quoting Smith v. State, 107 Ala. 144, 18 South. 306, and W. U. Tel. Co. v. Rowell, 166 Ala. 651, 51 South. 880, but it was also held in that case that the burden was on the party inducing the admission oi illegal matter as evidence in a cause to wholly neutralize the prejudicial effect wrought by the admission. Watson v. Adams, supra; Green v. State, 96 Ala. 32, 11 South. 478; Carlisle v. Hunley, 15 Ala. 625; Jackson v. State, 94 Ala. 89, 10 South. 509; Jordan v. State, 79 Ala. 12. The admitted errors of the court were not cured.
The refusal of charges 23, 24, 25, 27, 31, 34, 37, and 41 is correctly conceded to be without error.
Charges 29, 32, 35, 36, and 40 relate to self-defense, and are covered by given charges 1, 6, 7, 14, 21, 22, and the oral charge of the court.
Charge 33 was covered by given charges 10, 11, 12, and the charge of the court. Charge 28 is bad, and properly refused. De Scrippo v. State, 8 Ala. App. 85, 62 South. 1004.
For the error pointed out, the judgment of the trial court is reversed, and the cause is remanded.
Reversed and remanded.
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