Phillips v. State

PELHAM, J.

The defendant was jointly indicted for arson with two other parties, Tom Tye and Oscar Myers, but demanded a severance on the trial of his case and was tried alone, and convicted of arson in the second degree.

*171 The evidence introduced by the state of a conversation had by Oscar Myers with his wife, was competent for the purpose of impeaching, or discrediting, the testimony of Myers; for which purpose it was manifestly introduced. Myers when on the stand as a witness in behalf of the defendant was asked on cross-examination by state’s counsel about having made certain statements in this conversation of a contradictory nature to what he had sworn on the trial as to a material matter having a tendency to connect the defendant with the crime charged, and he had without qualification unequivocally denied having had such a conversation or made the statements inquired about. It was, under these circumstances, entirely competent for the purpose of impeaching the witness, or discrediting his testimony, to show by the witness Mixon that he had in the conversation inquired about previously made contradictory statements as to this material matter. — Jones v. State, 141 Ala. 55 , 37 South. 390 .

A proper predicate is shown to have been laid for the introduction of this proof. It had been shown without conflict in the evidence by the testimony of the wife of the witness Myers, as a defendant’s witness, that she and her husband were at home on the particular Monday night laid in the predicate to Myers; and the question laying the predicate and the answer thereto by the witness conclusively show that the witness was fully apprised as to the time when, the place where, and the person present as referred to and made the subject of inquiry when laying the predicate, although no particular designation of the place where the alleged conversation took place is shown to have been included in the first question asked the witness. The fact that the place where the conversation was alleged to have occurred was well understood by the witness and that he was not mis *172 led or off his guard as to this is made even more apparent by the form in which the second question was framed, in which the witness was asked if he did not “at the same time and place” make a certain statement. The defendant denied having made this latter statement he was asked about, and it was only in reference to this latter statement as to which he was interrogated on cross-examination in laying this predicate that the impeaching witness was called upon to testify. We think the record shows that the inquiry was sufficiently definite and certain to direct the attention of the witness Myers to the occasion upon which contradictory statements imputed to him were made so as to enable him to recall and explain, if he so desired, all that he may have said to the person present on that time and place, and that he had sufficient notice to give him full opportunity to admit or deny making the statement and not be misled as to the occasion, the particular conversation and person with whom it was alleged to have been had. This is the essential and material matter to be brought out in laying a predicate for the impeachment of a witness by showing prior contradictory or inconsistent statements, and when this is done the rule for laying a foundation for the introduction of the impeaching testimony is substantially complied with. — 40 Cyc. 2731; Nelson v. Iverson, 24 Ala. 9 , 60 Am. Dec. 442 ; Burton v State, 15 Ala. 1 , 22 South. 585 . The rule does not require perfect precision in laying a predicate for the purpose of introducing contradictory statements.

“When it is clear that the witness cannot be taken by surprise, and ample opportunity is afforded to make any explanation desired, the predicate is sufficient to authorize proof of contradictory statements.” — South. Ry. Co. v. Williams, 113 Ala. 620, 623 , 21 South. 328 .

*173 What was said in this conversation above discussed to Myers by his wife was admissible for the purpose of connecting the statements made by Myers and rendering them intelligible. — Powell v. State, 5 Ala. App. 75, 80 , 59 South. 530 . Myers was not on trial, and the rule as to a wife’s incompetency as a witness against her husband on the grounds of public policy does not apply. Nor is there any room for the application of the rule affording protection against being forced to furnish evidence to be used against one’s self. The defendant Phillips, having demanded and been granted a severance, in the trial of the case against him was alone on trial, and the proceeding against Myers becomes a collateral one in which his interests could not be judicially affected.— Woods v. State, 76 Ala. 35 , 52 Am. Rep. 315 .

The point is not well taken that, because the conversation between Myers and his wife was had in their own home and was overheard by design and without the knowledge of the conversants by the impeaching witness, it was for this reason within that class of confidential or privileged communications that cannot be given in evidence by the third party hearing it while eavesdropping. The rule of law, based on public policy, prohibiting the husband and wife from testifying for or against each other in certain cases, and that rule holding communications between them to be privileged, do not, considered singly or together, go so far as to forbid, when otherwise admissible, the introduction in evidence by a third party of a conversation between the husband and wife overheard by him either through accident or design, although it was not known or intended by the converses that it could or would be heard. The fact that the conversation was overheard while spying or eavesdropping might affect the weight of the evidence, but it does not affect its admissibility. — 17 L. R. A. (N. S.) 451, *174 note 33 L .R. A. (N. S.) 485, note; 6 Enc. Ev. 906; 40 Cyc. 2359; Hoy v. Morris, 13 Gray (Mass.) 519 , 14 Am. Dec. 650 ; State v. Hoyt, 47 Conn. 518 , 36 Am. Rep. 89 ; State v. Allen, 37 La. Ann. 685 ; People v. Cotta, 49 Cal. 166 ; Com. v. Griffin, 110 Mass. 181 ; Knight v. State, 114 Ga. 48 , 39 S. E. 928 , 88 Am. St. Rep. 17 ; Com. v. Everson, 123 Ky. 330 , 96 S. W. 460 , 124 Am. St. Rep. 365 . See, also, Cotton v. State, 87 Ala. 75 , 6 South. 396 .

There was no error in permitting the state’s counsel to ask the defendant’s witness Mrs. Myers, on cross-examination, if her husband, Oscar Myers, was not also indicted for the same offense. The indictment showing the fact that Oscar Myers was so indicted was before the jury, and the question was competent to identify the witness as his wife and show interest or bias, and it is always permissible to ask questions on cross-examination having a tendency to elicit testimony showing the interest or bias of the witness.

No exception is shown by anything contained in the bill of exceptions to have been reserved to any ruling of the court in permitting the witness Mixon to be asked, and to answer, the question, “Did they know that you were there?” having reference to the occasion when .the witness testified to having overheard the conversation between Myers and his wife. There is therefore nothing to consider upon a review of that matter (German v. Brown & Leeper, 145 Ala. 364 , 39 South. 742 ); nor do we think it would constitute prejudicial error requiring a reversal of the case if proper exceptions were shown to have been reserved to the court’s ruling in permitting the question. The facts that the witness testified to showed conclusively that his presence was unknown to the conversants, and that was the purport of his answer made to the question. There was no conflict in the evidence as to this, and, even if the question be deemed objectionable *175 as calling for a conclusion of the witness, it would not be prejudicial.

We have discussed the questions argued by counsel for the defendant in brief, and have carefully considered the other questions presented by the record, and discover no reversible error. The case will therefore be affirmed.

Affirmed.