Dixon v. State

¶1On Rehearing

¶2•Code 1940, T. 15, § 306, reads in part:

“There shall be no exclusion of a witness in a criminal case because, on conviction of the defendant, he may be entitled to a reward, … such objection is addressed to the credibility, not to the competency, of the witness.”

¶3For prior law, see Bohannon v. State, 73 Ala. 47.

¶4The State urges us to affirm on authority of Wells v. State, 19 Ala.App. 403, 97 So. 681; Brown v. State, 22 Ala.App. 648, 119 So. 512, and Harmon v. State, 20 Ala. App. 254, 101 So. 353.

¶5In Wells refused Charge T read [19 Ala.App. 403, 97 So. 682]:

“The court charges the jury that, if you believe the evidence in this case, the sheriff will receive the sum of $50 in the event of a conviction, and you may look to the fact that J. V. Andrews is deputy sheriff, weighing his evidence.”

¶6That case was reversed under an opinion of Bricken, P. J., delivered on rehearing so that with the ratio decidendi being set out in Judge Bricken’s opinion, the comment of Judge Samford on original deliverance is left stranded and can only be dictum. However, in Brown v. State, supra, Judge Samford used the same reason alluded to by him in Wells. In Brown refused Charge 13 was as follows:

“The court charges the jury that in weighing the testimony of the witnesses O. M. Campbell and Tom Logan you may look to the fact, if it be a fact, that said witnesses expect to receive a reward if the defendant is convicted under the indictment in this case.”

¶7Of which the court said:

“Refused charge 13 was covered by the court in his oral charge. Moreover, this requested charge gives undue prominence to a part of the testimony.”

¶8The “singling out” — Wells, supra— (which, of course, is virtually identical *470with “giving undue prominence to”) seems to lie in the mention of named witnesses rather than in framing the instruction so as to embrace the testimony of all witnesses within the ambit of the reward statutes.

¶9This vice does not apply here since Dixon’s refused charge covers precisely the offerees named by the Legislature, i. e., persons or officers. See Mosely v. Kennedy, 245 Ala. 448, 17 So.2d 536.

¶10Harmon v. State, supra [20 Ala.App. 254, 101 So. 354], presented refused Charge L which read:

“I charge you, gentlemen of the jury, that you can take into consideration, in addition to the evidence adduced from the witness stand, the fact that the statute provides a reward of $50 to be allowed the sheriff or other officer or person who furnished the evidence, and brings about a conviction in distilling cases.”

¶11Thus, in Harmon, we have three reasons to justify the trial judge’s refusal of Charge L:

(1) it was covered by the oral charge;

(2) it pretermitted the steps to se- . cure the statutory reward; and

(3) it was abstract under the evidence of that case.

¶12Of these three only the second would have influence here.

¶13The Harmon case was in 1924, Layton in 1928, and Bowlin in 1931, a span of almost seven years. This seems too short a time to ascribe any primacy to the Harmon opinion over Layton and Bowlin under the principle of, “The older the case, the better the law.” 1

¶14In Layton and Bowlin, there is no description of the pecuniary interest being inchoate or contingent at the time of testimony because the reward is available (as are most rewards) to the person furnishing information leading to the arrest and conviction of the culprit.

¶15The Harmon opinion attaches significance to the fact that Charge L did not point out that the trial judge is the final awarding authority, T. 29, § 102, as amended. Our understanding is that in our circuit courts where the evidence is clear as to who is entitled to the reward — as it is here — the trial judge’s certificate issues as a matter of course, and is recorded not as a separate proceeding but on the docket sheet of the case in which the testimony was given.

¶16The Layton case, we think, correctly points out that the mere existence of the statute affords the potentiality of a witness consciously or even subconsciously trimming, altering or even fabricating his testimony, and hence is sufficient to require, on proper request by the defendant, the giving of an instruction regarding the pecuniary interest of a witness as it might affect his credibility. No subsidiary requirement of the procedure to get the reward after the defendant’s conviction is pertinent under such a view. To this extent, the second reason referred to in the Harmon opinion must be taken as being superseded by the principle of Layton and Bowlin where there is no question under the evidence as to who furnished the proof.

¶17In Thomas v. State, 22 Ala.App. 516, 117 So. 498, it was reversible error to sustain the State’s objection to a question going into the pecuniary interest of a State witness in the proceeds of an insurance policy on the life of the deceased — proceeds which, if the defendant had been convicted of murder, might have gone, at least, in part, to the witness. See also Weaver v. State, 17 Ala.App. 506, 86 So. 179, and Lock v. State, 21 Ala.App. 81, 105 So. 431.

¶18Smith v. State, 30 Ala.App. 346, 5 So.2d 648, dealt with a question put a deputy sheriff as to how much the sheriff would *471get if Smith were convicted. The deputy was assumedly on a salary basis, hence the .•court held his interest too remote, Mosely v. Kennedy, supra.

¶19Here the State’s two principal witnesses who, under the undisputed evidence, would be entitled to the reward were neither the sheriff nor his deputies. Thomas, Weaver, Lock and Smith are all cases touching proper cross-examination.

¶20Moreover, the earlier strictness relating to competency of witnesses because of pecuniary interest2 has not carried over with the advent of § 306, supra.

¶21In Crawford v. State, 30 Ala.App. 104, 1 So.2d 314, a prosecution for selling a choking mule [now Code 1940, T. 3, § 18], it was held reversible error to refuse the following charge:

“I charge you that the lowest fine in a case of this kind of a prosecution is one hundred dollars and one-half this goes to the prosecuting witness Noel Smith, and you are entitled to consider this fact in considering Smith’s testimony in this case.”

¶22We have compared the oral charge in the record3 in the Crawford case; and, based on that opinion, on Layton v. State, supra, and on Bowlin v. State, supra, in the light of T. 15, § 306, we adhere to our former view.

¶23Application overruled Oct. 20, 1959

¶24PER CURIAM.

¶25Affirmed on authority of Dixon v. State, 269 Ala. 548, 8 Div. 983, 115 So.2d 270.