Benefield v. State Court Opinion 1

    334 Al8"

undivided one-half interest in the personal

pron.t,, therein described'

From what we have said it follows that

,h:';";;;;P'il'd r'o'n is due to be re-

,"rr"a and the cause remanded'

Reversed and remanded'

LAWSON, SIMPSON and MERRILL'

JJ., concur'

Wllllard SPoncer BENEFTELO

Y.

STATE.

6 Dlv. 291.

100 souTEEBN BEPoBTEB', 2't sEBrEE

Court ol APPeats of Alabama'

Oct' 29' 1957'

Rehearlng Denied Nov' 19' 1057'

Prosecution for first degree murder'

r"d;;;;';i J:::j::'";," 
i ;'"ll,.tf ::murder was entereo I

:;::i col"t, T"'""loosa countY' w-'c'
il;.;, i; and defendant aPPealed' Tl:
ffiil?'RPPt't', Cates' J" held that trial

"""Jt";.il"I 
to "llo* 

defense counsel to

:;il";;s which Police officer rvho

was testifying was o'ing to refresh.his

;;;;;";;; ieversible error in as much 
'as

liH;;t; included tvpewritten transcript

""U'r".t 
t'nich related to inculpatory acl-

missions of defendant'

Reversed and remanded'

2. Wltno3tol @256

In prosecution for first degree murder'

tri"t .oirt', refusal to allow defense coun'

.J;"-; r"pttt which police officer- *'ho

was testifying was using to refresh his

;;;;, *i, -t"ot where such PaPers con'

.tti.J-irt typewritten transcript and notes

il;;;;;J to inculPatorY admissions oi

defendant.

On APPlication for Rehearing'

3. Crlmlnal Lev @l tTOVz(Jl

In prosecution.for 6rst degree murder'

trial court's error rn refusing to allow de'

i.rrr. "oon"l 
to examine tyPewritten tran'

sc.ri"p;; ;;tes relating to de{endant's in'

;il;;; "d-i"iont 
and being used bY

;,'; . :'ffi "'r r*Ji'J'11l;,1L;I
fresh his memory w

i.*-i, ",t"t 
witnesses' testimony sufficient

to suiPort a guiltY verdict'

4. Grlmlnal Law @l l7Dt/z$l

If there is prejudicial error in any de

-.""';';; irtituae afforded a defendant in

;::il' .t"tt-t."t'i"ation as to a confes'

sion. it cannot be sard what might havt

i..t in" 
-""tt"me 

had the witness been

nr.r,t"".U further' and the quality of such

error cannot be measured by adding ortak'

#;;;;;ins or r'ult since an aPPellatt

""""" "*".t 
assess the weight of testimony

;;:;;;i;;ess ror its effect on the jurY'

Skidmore
apPellant. " 

;;ruscaloosa' ror

Gen., Bcrnard I
Asst. AttYs' Gct:'John Patterson, AttY'

Sykes, and Geo' Yottng'

for the State'

Certiorari denied, 100 So'2d 340' CATES, Judge'

r, Homrcrdo €=276 "Hl'tiii"Jii t-::^*x;-#i.;i:
In prosecution for first degree murder' loosa countv for first 

iif;Titit'tt-t 1;l

:::,l:ffi i::'J:iiJ:i*ffi ll::,"'xltlJ[,.i'"1],::l::#tft i:l:
fense.



degree murder,
. defense coun-

ice officer rvho

1q refresh his

rch PaPers con.

cript and notes

y admissions oi

Rehearing.

It

t degree murder,

,irg to allow dt-

ryg€written trao.

ri defendant's ir
,- b"ing used bY

istifying, to ro
t. rendered harn'

dtironY sufficient

ti

,(5)

.l error in anY de

led a defendant in

1 as to a confes'

what might hatt

the witness betr

the qualitY of suci

C bY adding or tal'

: since an aPPellatt

reight of testimon;

:fiect on the jurY'

rn, Tuscaloosa' iot

7. Gen., Bernard i

L Asst. Attys' l"'t:'

lwounded in the upper part of
'by a shotgun in the hands of

the effects of this wound,
three o'clock in the morn-
r 13, 1954. After Mr.

been taken to the hospital,
ild stated she had shot her hus-
I'gr:.n, which was introduced in

l''She was taken to the city police
:questioned. Sometime around

in the morning, she gave a
in question and ansrver form,
, 
t'tape recorded." Thereafter,

-o'clock of the same morning, she

425), she was tried on pleas

aod not guilty by reason of in-
.verdict was of guilt as to
Eurder and fixed her punish-

years' imprisonment.

,evidence tended to show that
of November 12, 1954, two
the City of Tuscaloosa were
.Beoefield home and found
before the residence leaning

parked at the curb
. She would not talk at that

toward the house, the ofr-
ired Mr. Benefield "sitting on
f,i his head leaning back on the
rfls'lying on his back." Bene-

rther statement. After the proper
'i"d b..n laid, each of the three

was admitted in evidence.

Benefield took the stand in
fense and made out a case of
to shoot her husband in self

conflict of testimony made
question.

Benefield's motion for new trial,
counsel, the Hon. E. W. Skid-

.pas sitting rvithin a matter of
four feet of Mr. E. A. Walton
testified as a witness for the

was observing him closely
y. At one point in his testi-
[rect examination by the so-

BENEIIELD v. STATE
Clte t! 100 So.2d ll,il{

AIa. 335

ness apparently reading from a paper
which he had in front of him, and this
objection was overruled by the Court,
as shown by the transcript. At the
time I initially made this objection
Mr. Walton had Several different pa-
pers in front of him and the one on top
was a typewritten paper consisting of
more than one sheet, as I recall, on
legal length paper. It is my belief that
this paper was a transcript or a pur-
ported transcript of a statement made
by Mrs. Benefield at the City jail and
which had been tape recorded. Im-
mediately prior to the objection made
by me this witness would give his
attention to the solicitor while the
question was being asked, and when
the question was completed he would
look at the paper in front of him and
remain looking at the paper as he testi-
fied. It was my impression that he
was either incorporating sections or
portions of the typewritten statement
in his answers, or else was using it to
refresh his recollection in his testimo-
ny.

"Shortly thereafter, and at or about
the time that the solicitor asked this
question 'Now, you may refer to your
notes, if necessary, and refresh your
recollection and proceed to tell what
was in that statement,, the witness used
another and a different paper from
which to testify, and at this time the
Circuit Solicitor, the Honorable Olin
Zeanah, was seated directly across the
counsel table from me and it was my
impression and is my judgment that he
had a copy of the same document in his
hand that the policeman had in his.
Apparently he rvas framing his ques-
tions from this paper, and the witness
Walton, the policeman, vras answering
from a copy."

In rebuttal (on the hearing on the motion
for a new trial) the Circuit Solicitor, the
Hon. Olin W. Zeanah, testified:

;, on Decembd 
.

rand jurY of Itt*
: degree murder'.'

with killing her r 
.

On October 5' ''
, to her 54ntt/' '' an objection to this wit-



1()O SOUTEEBN BEPOBTEB 2d SEBIEB

336 At&

"In reply to the statement that Mr'

SUarnor" has just made' I was- ttle

;;ffi;;-r;*cuting tt'" case or the

l',H";JJ-MrsI B'ne6eld' which

did result in a convtction of murder

in the second degree' and I questioned

il;. a Walton, Policeman for thd

tii, of Tuscaloosa' who testified as a

H'J: r"t iit s'"tt.in that case' At

;;;. of the questioning I do hrow

;;-i;.i that I was not question-

ii,' *'. 
- 
w!'i"', 

-1'-"r\;:1,:: :' fi:
statement of anY ktnc

statement that was referred to in the

;ffii;;U;;d the statement rererred

io in tt'.-answers apparently was a

.i*.rn*, which was an oral statement

mla;;;-*. def endant' Willard-'SPen-

#;;.;;ia, to tvt'' E' A' warton'

L in."ii." Mr' walton was being

"r.tri"r.a 
bY me he had in his Posses-

H.,i,I-..'pJn it'a not" which he had

il"; *nitt' t" testified during the

Or*,""i* that he had made himself'

ii i. ., iecoltection that he ut1 i::
..J "trtntg 

from any statement' ln-

.irit.tiit '-"tes' 
but that he mav have

referred to it from time to time during

irr." t.ttttt', I do not recall anY

typewritten statement being in Mr'

walton,s Possesslon. I did have. a

typewritten statem-ent in my frle during

the trial, aud as i recall' I offered it

in .,iat""t at on€ time' I do not re-

;;;;; whether it was received in

evidence or not. I do know' however'

I was not questioning Mr' Wattl
from any typewritten statement' 

' 
nor

*".'nt tt'iing from any typewritten

statement or penciled statement' b-"''"'

I recall, he onlY had in his hands the

penciled notes which I have referred

to'
1*r*11
,,By Mr. Skidmore:

I recall, the transcript wilt show it a

i"ii.,i.t, but as I recall I had asked

;t. il; a statement which she made

ffi; her home and Police Head'

quarters.

"rr Well. I will ask You this ques-

ti.,I' lt'it a fact, is it not' that when

ii"t.'w"t,* was on the witness stand

ttiirJ;;;. " 
coPY of the transcriPt of

il. **;;taiii trrat Mrs' Benefield

ft "t"*l.ito 
ftave-mad" at Police Head-

;r";"il--That is true' isn't it? A'

I don't recall that'

,'O. If you den't mind, not for the

,orior.-oi imPeachment but for Pur'
t"".I -"t 

ref"shing your recollection'

ilr".. t..u from what is now the bot'

il';i;;; le as it is PresentlY shown

;-J.tr.; irinsc'iPt, in which You state:

itut.. w"rton, have you got a complete

;..;J'ii"t" "i 
what she told You in

,t]i 1,",.*tntl' 'Yes' sir'' Norv'

,f.r"i **ta imply' and you understood

", 
,t. ,irnt, that meant a typewritten

...".i,"*"t'dn't it? A' It maY have'

I just don't recall that'

,,e. ,Of every word that was said

to You in that statement?' 'Yes' sir''

,iri-in.n the further question- 'Now'

.r"" *", refer to Your notes' if neces-

i"*'^"]ia *tresh your recollection and

;;;;1" tell what was in that state-

';;;i" ri"*,' tn"t statement referred

to bY You was a written statement'

wasn't it, a statement that h"9 bttl

i.*.nit writing? A' I have here rn

;;.;;';. ": Il: il:: il:;;f ili
Penciled notes that l

TheY are on blue PuP"t: o"-Y-Lt:l 
Y|;

W"iton has aPParentlY srgrleq :;.:

;";.. No*, as I recall' tttis is tni
,..ilil.;;;at r asked him about' I

iri",i. tt"'script of the typewritten

,ii."t."i "t Mrs' Benefield in mY filc

but I do not know what the occasion

;;;;";; been ror Mr' walton to

have had that statement' because 'I
;;;;; that r had that statement t!

mY file.

,,e. Now, Mr. Zeanah, I believe

rro,Jrt"t.d in your statement that that

'-: ;;; o,"i 't"tt*"nt 
that You and

fft. *;il were discussing there at

il: #-;i this questioning? A' As

t
(

a

I

It

o

OI

Pf

tl
til

5.



BENEPIELD 7. STATE
Clte as too So.2d &X

t'

Ala. 337

rill show it a

ll I had asked

,hich she made

Police Head-

you this ques'

not, that when

e witness stand

he transcriPt of

Mn. Benefield

"1 
petice Head-

rc, isn't it? A'

rin4 not for the

:at but for Pur'

Qur recollection'

t is now the bot-

i presentlY shown

which You state:

u got a comPlete

: she told You tn

fes, sir.t Norv'

d you understood

ant a tYPervritten

A- It maY have'

taL

ord that was said

ment ?' tYes' sir''

er question '\orv'

,ur notes, if neces'

ur recollection and

: was in that stlte'

statement referred

written statement'

rent that had bc:n

' A. I have here tn

is time trvo Pages 
ol

t Mr. Walton had'

)aoer. on uhich ]Ir'

ar.ntlY sigrted ht!

I recall, this is tnl

rsked him abotrt' I

l of the tYPervritttn

Benefield in mY lrtl
ur what the occastor

for lr{r' Walton to

f,ft'"1',,:,'.T:::;

Now, to further refresh your
ion, on what is now page 27 of.

tfarscript, will you look there,
sir, about two-thirds of the way

had a copy of a statement that
Do you have it there with

Aaswer: 'Yes, sir.' A. Yes,

, that referred to the tran-
Sf her statement made on tape

didn't it ? A. It may have.
rtcall that, but it may have.
at that time we oftered that

Now, I don't know
;fl, had later showed that to

know how that got there,

or middle of the page, on cross-
riiion 'Mr. Zeanah asked you

made it. I have no way of knowing,
and I object to it. I would like for the
record to show that he has got some
typewritten sheets there, and then
some other sheets there with writing
o1 it. We object to him testifying ii
that manner, and I submit it is 

-not
permissible.

"The Court: He is just answering
the question, so far. I will overrulel

"Mr. Skidmore: We except, if your
Ifonor please. And I *ouid lik. tho
record to show that at the time he was
answering the questions, a good part
of the time, his eyes were fixed on ih"t
typewritten sheet of paper there in
front of him.

"The Court: Well, I couldn,t let it
show that, because I didn,t see him look
at it.

"Mr. Skidmore: Well, I am stating
that, and I was looking right at him.

"Q. [By State Solicitor] Mr. Wal_
ton, have you got a complete record
there of what she told you in that stcte-
ment ? A. Yes, sir.

"Q, Of every word that was said
to you in that statement ? A. yes, sir.

"Q. Now, you may refer to your
notes, if necessary, and refresh your
recollection and proceed to tell what
was in that statement.

"Mr. Davidson: We object.

"Mr. Skidmore: We object, if the
Court please. Irretevant, incompetent
and immaterial. The question does
not call for a statement made by de-
fendant but for contents of a record or
prepared statement. euestion not con-
fined as to time and place.

"The Court: Did you make the notes
yourself ?

"The Witness: The notes ? yes, sir,
these, on this.

F$,h. had it. He may have
rt the time. I cannot under-

I

t

he would have it, because f
I diy file.
v,,
Of course, there could have

carbon made of it? I mean
? A. Oh, yes, it is

during the direct examina-
E, A. Walton, one of the ar-

the following colloquy (the
foregoing testimony on the
trial) had taken place:

[Defense Counsel]:
't know to what extent the

testifying or reading. He
doing a little of both. We-nrm-As I understand the

can use notes made by
refresh his recollection, but
k he can take a prepared

and half way read from it.
him using it.

rt: He can refresh his
he has anything to refresh

, he can do that.

bre: We object to. it. I
at the writing is, wheth-

whether somebody else



338 AIa. lOO SOUTEEBN BEPOBTE& ZA SEBIE8

"The Court: Well, all right. I will
overrule,

"Mr. Skidmore: We except.

"Q, All right, sir. Go ahead, Mr.
Walton.',

On his cross examination by Mr. Skid-
more, the following occurred:

"Q. Mr. Zeanah asked you if you
had a copy of a statement that she
made. Do you have it there with you?
A. Yes, sir.

"Q. tr{ay I see it, please, sir?

"Mr. Zeanah: Now, we object. We
will offer it into evidence. We would
like for the jury to see the rvhole state-
ment, but we are not going to let them
read that statement that was taken un-
less u'e let the jury see it. I would
like to let the jury see the rvhole state-
ment. I think it would be well for
them to have it, and we will offer it
into evidence, but we are not going to
agree that they have a right to exam-
ine it and try to figure out what was in
it.

"Mr. Skidmore: I think rve have a
right to see it, if Your Honor please.
He has testified to certain things in it.

"Mr. Zeanah: We will offer it into
evidence, the whole statement.

"Mr. Skidmore: You offer it into
evidence if you rvant to and I will do
whatever I think is proper at the time.

"The Court: You do offer it into
evidence ?

"Mr. Zeanah: Yes, sir, we rvill offer
it into evidence, but we object to his
looking at the statement at the time.

"[[r. Skidmore: If you don't mind
the jury seeing it why do you mind my
seeing it?

"Mr. Zeanah: We want the jury to
see the whole statement. I don,t want
you to look at it.

"Mr. Davidson: We object to ths
statement,

"The Court: Well, I wilt admit it if
there is no objection.

"Mr. Skidmore: We object. Are
you offering it now ?

"Mr. Zeanah: yes.

"Mr. Skidmore: We have got the
witness on cross examination,-if t;;
Court please. I don,t think it is the
proper time to offer it now.

"Mr. Zeanah: He has no right to
see the statement.

"Mr. Skidmore: We are just asking
the witness on the stand to let me see I
copy of the statement that he has done
stated under oath he has got in front
of him.

"\[.r. Zcanah: We object, rvithout
you offer it in evidence for the jury to
see.

"The Court: f don,t betieve he has
to show it to you unless it has gone to
the jury.

"Mr. Skidmore: We except, and we
submit we have a right to see it and
see what the content of it is.

"The Court: He is not testifying
from it or anything, or necessary to
sholv it unless it is admitted to the
jury.

"Mr. Skidmore: Of course, rvhatever
Your Honor says, we will borv to your
Honor's ruling. We are asking for the
statement, and we might remind your
Honor that he stated-

"The Court: We will let you and the
jury both see it.

"Mr. Skidmore: We appreciate the
munificient generosity of your Honor
and the solicitor, but that is not what
we are asking for. We are just askinf,
to look at the statement the witness hac

testified to. I submit I have a right to

fiar
(dteirts

riinless

ol
'dd,

I

u
t

Ii

F tot
ibr,uft r,,'ilt not ,

'rof thi

to1



BENEFIEI,D Y. STATE
Ctte 8! 100 So.2d 331

Ala. 389

if

\re

i-rt fne witness has testified it did

show certain things, and we have

right to check the statement to see

it shows it.

Court: I am Passing on that'

ttink You do not have the right'

Yes, sir. We re-

arr excePtion."

of what memorandum

oi, *"t using to refresh his mem-

,i.,k it should have been exhibited

ilcounsel on demand<ertainlY at

Walton's cross examination'

deem susPect of using aide-

witness who brings PaPers or

i stand. The trial judge can-

watch a witness to see if he

in a book or his Pocket. In
State, 12 Ala.APP. 216, 67 So'

reversed, where the court
' sustained objections to cross

ion as to various entries in a rec-

of a dePot agent, the book hav-

used on direct evidence to revive

recollection. We think it im-

based upon his references to notes,

papers and memoranda, inspection of
which was refused to defendant's coun-

sel, but aPParentlY the witness re-

freshed his recollection from such

sources often. His testimony was ma-

terial and was highly damaging to the

defendant. We conclude that the court

committed reversible error in denying

to the defendant's counsel the right to

examine the notes, PaPers and memo-

randa which were used by the witness

for the purPose of refreshing his mem-

ory."-Montgomery v. United States, 5

Cir.,203 F2d 8f;7, at Page 894'

We cite 58 Am.Jur., Witnesses, $$ 601{;
Annotation, 125 AL.R. 19-250, particu-

larly pages I\LZW; 24 C.J'S' Criminal

Law $ 1909, note 59, p.926; Wigmore (3rd

Ed.), $ 762; Wharton, Criminal Ev' (l2th

Ed.), $ 854.

In conclusion, for the basic reasons adopt-

ed by courts almost in all jurisdictions, we

quote from People v. Gezzo,307 N'Y' 385,

izt N.p.za 380, a case wherein a police

inspector had testified, in chief, with a

memorandum from which he seemed to

read questions put to, and the answers of,

Gezzo it an intcrview as to a killing' As

to the trial court's refusal to let the defend-

ant see the memorandum, the prosecution

confessed error, but claimed it to be harm-

less. In refuting this contention, the court,

per Conway, J., said (307 N'Y' at Pages

393J94, 121 N.E.2d at Page 384):

"It may be that an inspection of the

memorandum would not have assisted

defendant in anY waY' But, as was

said in Tibbetts v. Sternberg, 65 Barb'

2Ol, 203, suPra: 'The Production of
the paper might have been of no value

to the defendant, but it is the principle

thus sought to be established that is

mischievous and dangerous' The right
of a party to protection against the in-

troduction against him of false, forged

or manufactured evidence, which he is

not permitted to insPect, must not be

invaded a hair's breadth' It is too

the
the
the

rt to

sking
see a

done

front

'ithout
ury to

he has

Ione to

and we

: it and

:stifYing
ssary t0

I to thc

whatever

r to Your

rg for the

rind Your

ou arld the

JhQ opinion that the defendant was

io toot at the book on demand'

it
I
I

how could his use of it on cross

iou have been ProPer? Mr. Jus-
in Acklen's Ex'r v. Hickman,

35 Am.ReP. 54, has succinctlY

. In cases falling within
the memorandum is not

evidence in the cause, and

are not made known to the

lss opposing counsel call out
''6n cross examination. This

'dd, for the purPose of testing
to revive a faded or fad-

if for no other reason."

iItt., consider the error to be

to the defendant, since the tYPe-

trrnscript and the notes on the
both related to inculPatorY ad-

Benefield.

ctCir from the record how

reciate thc

our Honor

S not \^'hat

;s51 askinl

witness hl
e a right E witness' testimony was



340 Ala. lOO SOUTEEBI{ BEPOBTE& ZA SEBIEg

valuable to be trifled with, or to per-
mit the court to enter into 

"ny ""1"u-Iation as to how far it may be en-
croached upon without injury to theparty,. Or, as was written in Schwick-
ert v. Levin, 76 App.Div. 373, 3ZS, Zg
N.Y.S. 394, 39S, supra: ,The defend-
ant had the right to see, and to use. on
cross-examination, any memorandum
or writing which had served to !e-
fresh the memory of the witnes, on ii,
directexamination- | r * asthe.
conversation was material, the defend-
ant might possibly have been prejudiced
by this limitation upon his "-rr-.*"._tnatron, and therefore I think that a
new trial should be ordered.,,,

The judgment of the circuit court is re-
versed and the cause remancled for pro_
ceedings consistent herervith.

Reversed and remanded.

Wiltard Spencor BENEFTELD

v.

STATE o, Atrbsmr.
6 Dlv. 2rl{1.

Supreme Gourt ol Alabama
Jau. 28, 195&

Prosecution for murder. The CircuitCourt, Tuscaloosa County, W. C. Wr,,.-
J., entered judgment of 

"onr]*io,i"i}second degree murder, and the C*.t'.fAppeals, 100 So.2d 334, re.,erseilil:
tion on defendant,s appeal. tf,u ,t"i.'r*ptied for certiorari. H;-ir;;... ffII\ferrill, J., held that 6ndin] ;;l;;i;
Court of Appeats contrary to that made brtrial court as to whethe. *irr.r, *ir" ,.rnified at criminal prosecution was usincmcmoranda to refresh his ,..of t..tio,
would not be disturbed on certiorari.

Writ denied.On Application for Rehearing.

t3] The Attorney General contends that
even if our inferences from the testimony
were correct, neverthelcss the error we citefor reversal would be harmless U.."rr.*it_
nesses other than Mr. Watton gave testi_
mony sufficient to support a verdict ofguilt.

- t4] The quality of error is not measured
by adding or taking away grains of fault.If there_ is injurious 1or preluaici"l) .;;;;
in any degree in the latitud. 

"fora.a " a"_
fendant in proper cross examination as to a
confession, then we ca
have been th" ouic#'ffi',#1il:li
been questioned further. To aaopt any
other course would be an innovation'i, ;;'_
pellate review, i. e., to assess the weight ofeach witness, testimony_not intrinlicatif
as we might assess it anew_but for its
effect on the jury.

Application overruled.

l. Crlmlnat Law Gril79
Supreme Court on certiorari wouldnot disturb finding of fact Uy Cou.r oi

Appeals contrary to that made by trial courtas to whether rvitness who testified at
criminal prosecution was using memorandr
to refresh his recollection.

2. Wttnesses 6254
It is an every day occurrence that wir.

nesses arm themselves with books of ac.
count, notations or other papers in prepan.
tion for both direct and cross_examination,
but often such material is never required
nor used and a witness is not to be suspect.
ed of using aids to his memory, just bccaust
such items are in his por....ion when !c
takes the stand.

(

.+--

__fohn Patterson, Attl Gen., and C6
Young, Asst. Atty. G.n., fo1. ihe petitioo