Wilkerson v. State

ANDERSON, C. J.

It appears from the opinion of the Court , of Appeals that one Jones, who had testified for the defendant, upon. recross-examination by the state, said: “ ‘Mr. Blair is in the penitentiary I suppose.’ No objection • — no exception. Defendant then asked: ‘He is in the penitentiary about a killing case, isn’t he?’ The court sustained the state’s objection to- this question. The question called for evidence irrelevant to the issue being tried.”

When the state brought out this evidence, whether relevant or not, the defendant had the right to cross-examine as to same. L. & N. R. Co. v. Quinn, 146 Ala. 330 , 39 So. 756 ; L.

& N. R. Co. v. Hill, 115 Ala. 334 , 22 So. 163 ;

*454 Winslow v. State, 92 Ala. 78 , 9 So. 728 ; Valin v. McKerreghan, 104 Mich. 213 , 62 N. W. 340 .

We therefore think and so hold that the opinion of the Court of Appeals discloses error upon the face of same. We may add, by way of suggestion, that the question asked was not irrelevant after the witness had stated that Blair was in the penitentiary. It seems that this defendant was indicted jointly with others, including one Blair, and the fact that Blair was then in- the penitentiary tended to impress the jury with the fact that he had been convicted for the same offense, and that this defendant had the right to show he was there for some other offense.

The writ is awarded, the judgment of the Court of Appeals is reversed, and the cause is remanded to said court for further consideration in conformity with this opinion.

All the Justices concur.