Benefield v. State Court Opinion 2

    valuable to be trifled with, or to per_
mit the court to enter into any calcu-
lation as to how far it may be en_
croached upon without injury to the
party'. Or, as was written in Schrvick-
ert v. Levin, 76 App.Div. 373, 3ZS, Zg
N.Y.S. 391, 395, supra: ,The defend-
ant had the right to see, and to use on
cross-examination, any memorandum
or writing which had served to re_
fresh the memory of the witness on his
directexamination. * * * Asthe
convcrsation was material, the defend_
-ant might possibly have
by this limitation upon his cross_exam-
ination, and thercfore I think that a
new.trial should be ordered.,,,

The judgment of the circuit court is re_
versed and the cause rem:rnded for pro_
ceedings consistent herervith.

Revcrsed and remanded.

On Application for Rehearing.

t3] The Attorney General contends that
even if our inferr'nccs from the testimony
were corrcct, ncverthcless the error we cite
for reversal rvould be harmlcss becausc rvit_
nesses other than I,Ir. Walton gave testi_
mony sufficient to support a verdict of
guilt.

t4] The qrrality of error is not measured
by adding or taking away grains of fault.
If there is injurious (or prejudicial) error
in any degrce in the latitude afforded a de_
fendant in proper cross examination as to a
confession, then we cannot say what might
have been the outcome had the witness
been questioned further. To adopt any,
other course would be an innovation in ap_
pellate review, i. e., to assess the weight of
each witncss' testimony-not intrinsically
as we might assess it ancw-but for its
effect on the jury.

Applicatiorr overrulcd.

lOO SOUTEXRN EEPOBTEB, 2d SEBIES

Wllllard Spencer

340 AIa.

Y.

ETATE of Atabanr.
6 Dlv. 24S.

Supreme Court of

Jan. 23, 105&

Prosecution for murder.
Court, Tuscaloosa County, W.
J., entered judgment of

Appeals, 100 So.2d 334,
tron on defendant's appeal.
plied for certiorari. The

trial court as to rvhether witness'
f ed at criminal prosecution
mern.rr:rnda to refrcsh his i
r..'ould not bc disturbed on ce

Writ dcnied.

l. Crlmlnal Law €l179
Suprc'ne Cotrrt on certionil

\. l::' ,.c & Dal'idson,

, r.J

!tl NNII-L, Justice.

, rl ::,,:icr assertS that "i
tb, r r:t.,tl('r)rrslY tOOk the

a jr:r3r(rr {rantt from the

.. ...tt c e:td lrroceedings
r, c l,,r lrcrv trial, that s

,t llett,,tr tlitl, in fact, rcl
li'a: ,tl.ri( ! r;rls r+'hiclf he h

--.ffirrrrfun--ti
1r<r rt rliirrrrativcly appc

I,.{,rf tltt' t'r'itlcttce a

,.. ..1 rr:l,1111ttctl to thc C
., ., .i: l:',,1:rrg t.rf thC t
r.: 'i:rt tlrc rvitrtcss \\'a
r : .( tU rcfrc:h his re

I 1i ( crt;rinl.\', thc C,
. ' !. |:r: thc foll,rrviltg st

I ;.,r.!1,.. of tvhat
it' \t,,'',:t tt;ts ttsittlr

... s,. tlrirrk it sho
r .. t. 1,, rlt.fct.tsc ct

.,:..r:!tl.\' :tt tllc
I : (t .. (.\;lnliltirtioll.'

rha

llerrill, J., hetd that findinj ol
Court of Appeals contrary tolhi'

not disturt: finding of fact by
Appcals contrary to that marle by
as to n hether u.itness who
criminal prosecution ruas using nd
to rcfresh his recollection.

2. Wltnesses @254

if,
;it'.:
,.

It is an every day occureno!
nesses arm themselves with bor&
count, notations or other papers ia
tion for both direct and
but often such material is neve,
nor used and a witness is nol to
ed of using aids to his memory,
such itcnrs are in his possessioo
takes the stand. i



Sliitlrnore & Davidson, Tuscaloosa, op-

Fricd'

l\lI'-RRILL, Justice'

l\.tirioner asserts that "The Court of Ap-
g<;rls crroneously took the position, through
rriir'rr'nccs drawn from the transcript of the

rrrrlt'ncc and proceedings had on the mo-

t:.,1 for nerv trial, that state's witness E.
.A \\'alton did, in fact, refresh his memory
lr.rnr rrratcrials which he had in his posses-

r,rrr shile testifying orr the witness stand

-r-\cn it afhrmatively appears by the tran-
l rrl't oI thc evidence appearing in the
r,i,,rrl subnritted to the Court of Appeals
t)...t rhc firrding of the trial court below
rr. rlt;rt thc rvitness Walton did not use
r,,.r ihrrrg to refresh his recollection."

t,rr \ clr)ss cxantittation.,,

At!. 341

This finding of fact is contrary to that
made by the trial court as to whether the
witness was using the memoranda, but hav-
ing been made, we will not disturb it on
certiorari. 4 Ala.Dig., Certiorari, €fg.
But, we do disagree with the statement
following the quoted portion, supra, which
reads:

"Indeed, we deem suspect of using
aides-memoir any witness who brings
papers or books to the stand."

It is an every day occurrence that wit-
nesses arrn themselves -with books of=dcj -' ----
count, notations or other papers in prepara-
tion for both direct and cross-examination,
but often the matcrial is never required nor
used. To say that the witness is to be
suspected of using aids to his memory,
just because they are in his possesSion when
he takes the stand, is disapproved if this is
the correct interpretation of the quoted
statemcnt.

Writ denied.

LAWSON, SII\{PSON and GOOD-
WYN, JJ., concur.

BENETIELD v. ETATE
Clte ae 100 So.2d &{0

r BENEFIELD

' t,
Al.b.mL

I l;E

, 2,t5.
,{

b of Alalumr.l;iu

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l:

:EI

:urder. The
rnty, W. C.

of
, and the
34, reve
peat. The
Ihe Supreml
finding of {d

:ary to that nil
er witness wt
iecution w4''
;h his r
I on certiorui

!

n certiorad
fact by Oct

t made by

s who testild
rs uslng
on.

)ccurrence
with boob d

r paPers tn

I is nevet

is not to lt
emory,

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