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292 Ala. 248

292 So.2d 129

McMullian v. State

Supreme Court of Alabama

Decided December 6, 1973

Supreme Court of Alabama · decided 1973-12-06

Cited by 4 later decisions — most recently January 1983

4 state decisions

Relies on Bridges v. State · Seals v. State · Nichols v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1973-12-06

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FAULKNER, Justice

¶1(dissenting).

¶2Fletcher McMullian was convicted of second degree murder and sentenced to forty years imprisonment. He appealed this judgment to the Alabama Court of Criminal Appeals. That court reversed the judgment of conviction and remanded this cause to the Circuit Court of Jefferson County. The application for rehearing was denied. We granted certiorari.

¶3The sole issue raised for our consideration is the correctness of the trial court in sustaining the objections raised to certain questions to a witness regarding his possible prejudice or bias.

¶4It is always permissible to cross-examine a witness to ascertain his interest, bias or prejudice concerning matters about which he is testifying. Nichols v. State, 276 Ala. 209, 160 So.2d 619 (1964). Thorough and sifting cross-examination is provided for in *250Title 7, § 443, Code of Alabama 1940, Recompiled 1958.

¶5The Court of Criminal Appeals relying on Williams v. State, 44 Ala.App. 503, 214 So.2d 712 (1968) held that the witness’ testimony was sufficiently important and adverse to severely limit the judge’s discretion in allowing cross-examination. With this principle we cannot agree. This court has often held that the extent of cross-examination is vested in the sound discretion of the trial court and will not be reviewed on appeal except for abuse. Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969); Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968).

¶6Before the trial judge sustained an objection to a question, this witness had already answered several questions concerning possible bias and prejudice. In the record we find the following:

“Q. (BY MR. SHEFFIELD) You know him and hate him ?
“A. No, I don’t;
“Q. You don’t hate him?
“A. No, sir.
“Q. There’s no bad blood between you?
“A. No, sir, there’s not.
“Q. You don’t hate him because your brother was arrested for shooting his brother?
“A. No, sir, I don’t.
“Q. Your brother is upstairs in the County Jail now?
“A. Yes sir, he is.
“Q. Because of what he done to this boy’s brother?
“A. Yes, he is.
“Q. You don’t have any hard feelings about that, do you ?
“A VOICE: We object to that — repetitious—
“THE COURT. The Court will sustain the objection, not on the basis of repetition, but on the form of the question.
“Q. Let me ask you this, you would like to see Fletcher McMullian end up in jail, wouldn’t you?
“MR. DECARLO. Judge, we are going to obj ect to that question — -
“THE COURT. Sustained.
“Q. Is it your testimony you don’t have any ill will toward Fletcher Mc-Mullian ?
“A. None whatsoever.
“Q. None whatsoever, even though you testify you saw him out there and saw him shoot your daddy down, you still don’t have any ill feeling toward him?
“A. None at all.
“Q. And it is still your testimony you don’t have any ill will towards Fletcher McMullian here?
“A. It is. None whatsoever.
“Q. You don’t bear him any ill will?
“A. None at all.
“Q. You wouldn’t like to see him in the penitentiary ?
“MR. DECARLO. Now, Judge—
“MR. PURVIS: We are going to object to that, may it please the Court?
“THE COURT. Sustained.”

¶7The instant facts differ greatly from the situation where no cross-examination is allowed at all. The last question was not an attempt to prove a fact indicating bias. The right of thorough and sifting cross-examination - does' not mean that the trial judge may not step in when the sifting is merely repetitive.

¶8*251This witness was not a major one and his testimony merely repeated the events as set out by other witnesses. He had answered a number of questions regarding possible bias. It is within the discretion of the court in a criminal prosecution to refuse the cross-examination of a witness to bring out evidence which would be a mere repetítion of the witness’ testimony already in the possession of the jury. Newman v. State, 160 Ala. 102, 49 So. 786 (1909).

¶9Finding no abuse of discretion by the trial court, it is my opinion that the judgment of the Court of Criminal Appeals should be reversed and the trial court judgment affirmed.

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