
    Watts v. The State.
    
      Manslaughter.
    
    (Decided June 27, 1913.
    63 South. 15.)
    1. Witnesses; Btpamimation; Scope. — Where a witness for the state testified on cross-examination that defendant was considered a good citizen, but really not a good man at all, the answer was favorable to the state, and did not authorize the state on re-examination to ask such witness if he had ever heard defendant’s character discussed, prior to the killing, and if he had not heard it stated that defendant had killed his second wife also.
    2. Same. — Cross-examination presupposes the hostility of the witness or testimony contrary to the party who cross-examines, and does not arise from testimony favorable to the party cross-examining.
    3. Same; Re-Boeammation. — If a witness for the state testifies on cross-examination unfavorable to the state,'the state may re-examine him as to that testimony just as though it might have cross-examined a witness called by the defense, notwithstanding the right guaranteed by the Constituttion relates to opposing witnesses, if the matter brought out is new matter against the interest of the party, or in the nature of a surprise.
    4. Homicide; Evidence. — Where defendant was on trial for the murder of his second wife, the causes leading up to the death of his first wife were immaterial and irrelevant.
    5. Same; Insanity. — Where defendant had introduced proof in support of his plea of insanity, the court properly permitted the state to introduce evidence tending to show the sanity of defendant.
    Appeal from Colbert Circuit Court.
    Heard before Hon. C. P. At.mon,
    Will Watts was convicted of murder and he appeals.
    Beversed and remanded.
    Kirk, Carmichael & Rather, for appellant.
    The .court was in error in admitting evidence of the physi-cían that he had beard it stated that defendant bad killed bis first wife, and baying admitted sncb statement, the court should have permitted defendant co show the causes leading up to the death of his first wife. —Longmore v. State, 130 Ala. 66; Mitchell v. State, 114 Ala. 45; Abel v. State, 90 Ala. 631; Cooley v. Stale, in MSS. Counsel discuss other assignments of error relative to evidence, and in support thereof cite. — Redd v. State, 68 Ala. 492; Watts v. State, 59 South. 270. The testimony of the witnesses as to defendant’s sanity was inadmissible because it showed no such knowledge as would authorize them to testify. Charge F should have been given. — Morrell v. Stale, 136 Ala. 44; Words’ Case, 96 Ala. 100; Perry’s Case, 87 Ala. 30; Sec. 7176, Code 1907. Charge K should have been given. — Christiam, v. State, 96 Ala. 89; Lee v. State, 92 Ala. 15; Jones v. State, 75 Ala. 8. Charge O should have been given on the same authorities.
    R. C. Biugkbll, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.
    This case has been considered by the supreme court on a former appeal. — Watts v. The State, 59 South. Rep. 270. The evidence is practically the same as on the former appeal. The declarations of the defendant, while not attaining the dignity of confessions, were admissible to show his conduct and as indications of guilt. — Johnson v. The State, 17 Ala. 618, 625; Levison v. The State, 54 Ala. 520, 528; McAdory v. The State, 62 Ala. 154, 159; Mamoell v. The State, 129 Ala. 48, 54; Meadows v. The State, 136 Ala. 67, 73. Charge A is patently bad and is abstract. Charge I) leaves out the word evidence after satisfying. Charge E was on the weight of the evidence and singled out a part thereof to give it undue prominence. Charge L is confusing, lacking several necessary words. An impression of danger must be an honest one. — Storey v. The State, 71 Ala. 329, 337; Williams v. The State, 98 Ala. 1, 7; McClain v. The State, 160 Ala. 37, 40; Williams v. The State, 161 Ala. 52, 59; Hosey v. The State, 5 Ala. App. 110. Charge M assumed the defendant’s testimony as true. It also ignored the question of freedom from fault. Charges N and O ignore the question of freedom from fault. Charge P is erroneous. The state need not furnish all the evidence tending to convict. — Stallworth v. The State, 155 Ala. 14; Brooks v. The State, Court of Appeals present term.
   PELHAM, J.

— This case has been before the Supreme Court on a former appeal. — Watts v. State (Sup.) 59 South. 270. Many of the questions presented in this transcript, going to the rulings of the trial court on the evidence, are the same, or involves the same matters, that were considered and disposed of on the former appeal, and will not be again discussed.

The state introduced as a Avitness on rebuttal Dr. C. W. Williams, Avho was asked about, and testified on his examination in chief only to, the sanity of the defendant at the time he killed his Avife. On cross-examination by the defendant, this Avitness, in answer to a question as to whether the defendant possessed a good character, testified: “He is considered a good citizen, but not considered a real good man at all.” The solicitor was thereupon, against the proper objection of defendant, permitted on re-examination to ask the following question of' the witness: “I will ask you, Doctor, if prior to that time, the time he killed his wife, you had heard in the discussion of his character that he had killed his first wife.” To this question the witness answered : “Yes, sir; I have heard a good deal said about bis having killed bis first wife before be killed bis second wife.” In permitting this question by tbe solicitor against tbe seasonable objection of tbe defendant, and in refusing to exclude tbe answer of tbe witness, tbe court was in error. With tbe evident purpose of preventing as far as possible, by an instruction of tbe court, tbe prejudicial effect of tbe testimony of this witness as to tbe rumor be bad beard, tbe defendant requested a charge in writing to tbe effect that- tbe jury could not consider, in arriving at their verdict, whether or not tbe defendant killed bis first wife. This charge was refused.

It is not to be questioned that, bad tbe defendant brought out by this state’s' witness on cross-examination, as new matter about which be bad not been examined on bis-direct examination, that tbe defendant possessed a good character, tbe state ón re-examination could have cross-examined tbe witness with respect to this new matter, injurious to and in opposition to tbe state’s contention, brought out by tbe defendant, as fully as if the' witness bad been introducéd by tbe defendant in tbe first instance; for, although tbe right of cross-examination guaranteed by tbe Constitution relates to opposing witnesses (Wray v. State, 154 Ala. 36, 45 South. 697, 129 Am. St. Rep. 18, 16 Ann. Cas. 362), and tbe statutory right given “belongs to every party as to tbe witnesses called against him. [italics ours]” (Code, § 4017), yet when new matter is brought out on a cross-examination against tbe interest of the party calling tbe witness in tbe nature of a surprise, tbe party may on re-examination cross him as to it, even though tbe incidental effect may be tbe impeachment of the witness. — Thomas v. State, 117 Ala. 178, 23 South. 665.

However, cross-examination presupposes tbe hostility óf tbe witness, or' that tbe matter testified to upon wbicb be is crossed is opposed and contrary to tbe contention of tbe party conducting tbe cross-examination, and a favorable answer does not open tbe door to cross-examine on that matter to tbe party in whose favor tbe witness testifies. — See Wadsworth v. Dunnam, 117 Ala. 661, 23 South. 699; White v. State, 87 Ala. 24, 5 South. 829; Griffith v. State, 90 Ala. 583, 8 South. 812; Warren v. Gabriel, 51 Ala. 235; So. Ry. Co. v. Hobbs, 151 Ala. 335, 43 South. 844.

Tbe reason for tbe rule, or rather tbe exception to tbe rule, wbicb makes tbe class of questions under discussion on an issue of character admissible only on cross-examination, and renders tbe answers thereto competent evidence solely under this exception, is based on tbe right to test tbe credibility and soundness of tbe opinion of tbe witness, and elicit tbe data on which be testifies, when be has testified to tbe good character of a party as opposed to the contention of the one who subjects the toitness to this test by cross-examination. Tbe witness in this instance was not in any sense an opposing witness hostile to tbe state, nor did be, injuriously to tbe state’s contention on this matter, depose to tbe good character of tbe defendant. Tbe answer elicited was tantamount to saying, in effect, that while tbe defendant was considered a good citizen, be was not a man of good character. Tbe statement was in no sense equivalent to saying that tbe defendant was a man of good character, and only in that event would tbe state have the right on re-examination to cross-examine its own witness with respect to particular rumors affecting tbe good character testified to, for tbe purpose, not of proving or disproving tbe defendant’s good character as a matter of independent evidence, but only as affecting tbe bias of a hostile witness, or tbe extent of tbe information and credibility to be given to tbe testimony of an opposing witness testifying to injurious matter. A cross-examination of this nature eliciting testimony of that class is not permissible under the circumstances shoAvn here, Avhen the answer of the witness was not adverse or injurious, but favorable to the state; for to permit this evidence by a Avitness testifying favorably to the party would be to allow proof to be made under the guise of a cross-examination, or mere rumors highly prejudicial to the defendant, as independent evidence that would only be permissible and competent purely for the purpose of affecting the credibility to be given the testimony of a witness testifying on the issue of character against the party cross-examining him. — See Lowery v. State, 98 Ala. 45, 13 South. 498; Moulton v. State, 88 Ala. 116, 6 South. 758, 6 L. R. A. 301.

It could not be doubted for a moment that, had the Avitness Williams testified in ansAver to the question put to him by defendant's counsel, on the issue of the defendant’s character that it Avas not good, or bad, it would then be incompetent and improper to permit the state to cross:examine the Avitness for the purpose of supporting and lending color to his own testimony, by bringing out as independent evidence the rumors and reports concerning the conduct or particular acts he had heard as establishing the bad character of the defendant as deposed by him, and yet in effect there would be no substantial difference as a legal principle in declaring this to be the correct rule than holding that the state, under the conditions shoAvn by this record, should be permitted to elicit from its own witness (Williams), as independent evidence, Avhat he had heard affecting the defendant’s character in support of and to lend color to his statement, favorable to the state’s contention on this issue, that the defendant was “not considered a real good man at all.”

The defendant was on trial charged Avith the murder of his second wife, and whether or not he had hilled his first Avife Avas not a fact relevant to the issues before the court, and the rulings of the court refusing to permit the defendant to go into the question of the cause of death of the first Avife Avere free from error. This was an inquiry involving a matter collateral to the crime for Avhich the defendant was being tried, and entirely foreign to the issue.

The defendant had introduced proof in support of his plea of insanity, and the court committed no error in admitting the testimony of the various witnesses on rebuttal, who testified to the sanity of the defendant.—Howard v. State, 172 Ala. 402, 55 South. 255, 34 L. R. A. (N. S.) 990.

We find no reversible error in any of the other rulings of the court on the evidence.

The correct propositions of Iuav contained in the refused charges (aside from the charge above referred to in this opinion) seem to be fully covered by the numerous given instructions requested by the defendant. These charges are all faulty, some of them patently bad, and as the case must be reversed for the errors pointed out, we do not deem it necessary or beneficial to discuss in detail charges that may have no connection with another trial.

Reversed and remanded.  