
    Carter v. The State.
    
      Murder.
    
    (Decided February 11, 1915.
    67 South. 981.).
    1. Homicide; (Degree; Evidence; Jury Question. — Where the evidence for the state tended to show that the homicide was unjustifiable, and defendant’s evidence tended to establish an alibi, the question as to whether or not defendant was guilty of murder in the first degree was for the jury.
    2. Same; Eying Declaration. — Where the preliminary proof tended to show that the statement of decedent was made under the consciousness of impending death, the statement is properly admitted as a dying declaration.
    3. Same; Impeachment. — A dying declaration may be impeached just as if the declarant had testified as a witness in the case.
    4. Same. — An inquiry propounded on cross-examination as to whether decedent, whose dying declaration was in question, would have been entitled to belief as a witness, was improperly excluded, notwithstanding witness had not testified on his examination in chief relative to decedent’s reputation or character.
    5. Witnesses; Cross-Eccamination; Discretion. — The discretion vest ed in the court to regulate the cross-examination of a witness does not justify a requirement that the cross-examiner shall make a witness his own before eliciting from him testimony tending to impeach the declarant, the witness having testified as to the dying declaration.
    6. Appeal <md Error; Harmless Error; Evidence. — Although other witnesses testified that the declarant’s general character and reputation for truth .and veracity was bad, and that he would not have been entitled to belief in a court of justice, the1 exclusion of a question propounded to a witness who testified to the dying declaration, inquiring whether the declarant would have been entitled to belief as a witness, cannot be said to be harmless, and requires a reversal.
    7. Same; Waiver of Error. — The fact that defendant failed to call a witness as his own in respect to declarant’s unworthiness of belief, was not a waiver of error in previously excluding a question propounded on cross-examination to a witness introduced by the state, which witness had testified to a dying declaration, inquiring whether such declarant would have been entitled to belief as a witness.
    Appeal from Conecuh Circuit Court.
    Heard before Hou. A. E. Gamble.
    Marvin Carter was convicted of murder in the first degree and he appeals.
    Reversed and remanded.
    
      James A. Stallworth, for appellant.
    . W. L. Martin, Assistant Attorney General, and T. H. Seay, Assistant Attorney General, for the State.
   MoCLELLAN, J.

The appellant has been adjudged guilty of murder in the, first degree. The victim was one Lett. The state’s theory was that the homicide was of an entirely unjustifiable character. The defense was a denial of any participation of any kind, in the killing of Lett, by the accused; an alibi being-offered to sustain his denial. Manifestly the question of guilt vel non was for the jury, under the evidence.

The substance of a dying declaration said to have been made by Lett, under affirmatively proven consciousness of his impending dissolution, was admitted in evidence. There is no room for argument against the propriety of the action of the court in admitting to the jury the matter of the dying declaration. The predicate was satisfactorily laid to allow the admission in evidence of all the declarant said descriptive of the circumstances attendant upon and surrounding his version of the tragedy. Where a dying declaration is properly admitted in evidence, it may be discredited or impeached just as if the declarant had testified as a witness in the proceeding. So it is competent to allow the declarant’s credibility to be inquired into, his reputation for truth and veracity, and whether he would, if testifying as a witness in that behalf, be worthy of belief, in a court of justice.—21 Cyc. pp. 993, 994; Ency. on Evi. p. 1015; Carver v. U. S., 164 U. S. 694, 697„ 17 Sup. Ct. 228, 41 L. Ed. 602; Lester v. State, 37 Fla. 382, 20 South. 232; Gambrell v. State, 92 Miss. 728, 46 South. 138, 17 L. R. A. (N. S.) 291, 131 Am. St. Rep. 549, 16 Ann. Cas. 147.

The witness McCrory was called by the prosecution.. He testified to a- declaration by Lett, who had told him he was going to die. On cross-examination the witness testified, without objection, that Lett’s general reputation and his reputation for truth and veracity were bad. He was then asked whether Lett would have been entitled to belief as a witness, in a court of justice. The state’s general objection to the question was sustained. Perhaps the trial court entertained the opinion that the injection of the inquiry made by the question was not in order under a proper cross-examination; that it should have come on the defendant’s initiative, the witness not having testified on his examination in chief in reference to the particular matter of Lett’s reputation or character. If this was the ground of the court’s ruling, it consisted with the quotation from Phil. R. R. Co. v. Stimpson, 14 Pet. 448, 461, 10 L. Ed. 535, made in our casé of Toole v. Nichol, 43 Ala. 406, 419. That statement of doctrine is not the rule established in this jurisdiction. In Fralick v. Presley, 29 Ala. 457, 461, 65 Am. Dec. 413, it was said: “This court decided in the case of Kelly v. Brooks, 25 Ala. 523, that the party against whom a witness has been introduced and examined in chief has a right to examine him 'fully as to his knowledge touching any and all facts material to the case.’ We think the rule thus laid down is sustained by principle and a preponderance of authority.”

The Stimpson Gase, sn,pra, is there cited as sustaining the announcement made; but in this particular the pertinent doctrine of that case was evidently misunderstood. Nevertheless, we take the rule to be correctly stated in Fralick v. Presley; and its soundness, in principle, is further vindicated by the considerations stated and the pertinent rulings made in Amos’ Case, 96 Ala. 120, 125, 11 South. 424; Johnson v. Armstrong, 97 Ala. 731, 735, 12 South. 72. The state of the law in this relation, elsewhere prevailing, may be seen by reference to Jones on Evi. (2d Ed.) § 820, and notes; People v. Barker, 60 Mich. 277, 27 N. W. 539, 1 Am. St. Rep. 501, 517, 518; 3 Ency. of Evi. p. 816 et seq. The ruling actually made in Toole v. Nichol, supra, was invited by the inquiry whether a witness summoned by the opposite party, but not examined, could, as a matter of right in the other party, be cross-examined. It was well there held that no such right of cross-examination existed.

But the exercise of the right to cross-examine is subject to the control of the trial court’s sound discretion.—Huntsville Ry. Co. v. Corpening, 97 Ala. 681, 687, 12 South. 295. While it (the right) cannot be defeated or denied, the trial court may, within sound discretion, regulate the exercise of the right, particularly as to the time and method for the exercise of the right. That the exercise of this sound discretion vested in the trial courts in this connection will not justify the imposition on the proposed cross-examiner of the condition that, in respect of the matter of this inquiry, he should malee the witness his own, thus concluding him from discrediting the witness, is plainly ruled in Johnson v. Armstrong, supra.

So the trial court erred in disallowing the question propounded to- the state’s witness McCrory on his cross-examination, whereby the defendant sought to show that Lett, if he had testified as a witness, would not have been entitled to belief in a court of justice.

Was the error thus made without prejudice to the defendant? He was allowed, during the progress of the adduction of his terstimony, to show, by a number of witnesses, that Lett’s general character and his reputation for truth and veracity were bad; and that he would not have been entitled to belief in a court of justice. No witnesses were offered by tbe state to contradict this feature of tbe evidence presented by tbe defendant. Notwithstanding this state of tbe evidence on tbe issue of Lett’s character, we cannot affirm that tbe error stated was innocuous. Tbe effect of tbe error thus committed was not averted by the defendant’s failure to call McCrory as bis witness in respect of Lett’s unworthiness of belief in a court of justice.—Johnson v. Armstrong, supra. For this error tbe judgment is reversed and tbe cause is remanded.

Reversed and remanded.

Anderson, C. J., and Sayre and Gardner, JJ., concur.  