Prospective jurors who were deputy sheriffs and city firemen not disqualified for cause
How later courts described this case
- Prospective jurors who were deputy sheriffs and city firemen not disqualified for cause
Written by the judges who cited it.
The opinion
On Application for Rehearing.
In the original opinion in this cause we omitted to treat a question to which appellant on application for rehearing calls our attention.
After the shooting in the hotel room, defendant was forthwith carried to a hos *272 pital, where a chart was made. In response to a question by appellant’s attorney a keeper of the hospital records read from the chart the following: “Patient was struck in head with pistol butt in fight this afternoon and rendered unconscious for a short time.”
On motion of the State this quotation was excluded from the evidence, and defendant duly excepted.
At a subsequent time in the trial the judge made a revision in his ruling relating to the above, in which he said in part:
“Now, that means that when such a memorandum of an act or occurrence was made in the regular course of business, and it was the regular course of business to make such memorandum or record at the time of such act or occurrence, it would be admissible in evidence, but that does not authorize the admission into evidence of a hearsay statement recorded on such chart.
“Now, it is very plain to me that this statement in the chart that the defendant was hit on the head with a pistol was merely a hearsay statement reported to this doctor and recorded by him, but with reference to that last statement that he was unconscious for a short period of time, I am going to leave that with the jury. I excluded that yesterday but I am going to let that in with this explanation, that it is up to you to say whether or not that doctor was recording something he saw himself. If he was recording something that he had a personal knowledge of, that is, a personal observation of, then you are to consider it, but if you determine that he was recording something that somebody had merely reported to him, of which he had no personal knowledge, then you are not to consider it.”
Immediately following appellant’s counsel stated:
“We except to that instruction, and particularly to that part that if he was recording something that was reported to him they would not consider it.”
It is doubtful whether or not the' question is properly before us for review. Appellant’s counsel should have first objected to the alleged offending statement of the court. If the court overruled the objection, exception should have been reserved to the ruling of the court. In the latter event, opportunity would have been afforded the judge, if he saw fit, to retract or revise his statement. Birmingham Finance Co. v. Barber, 19 Ala.App. 609 , 99 So. 736 .
But it is not our policy or practice to be ultra technical, so we will review the inquiry.
Insistence is made on application for rehearing that this action of the court was error to reverse because of the provisions of Sections 415 and 270, Title 7, Code 1940.
Throughout the trial in the court below it was never controverted that State’s witness Valko hit appellant over the head with a pistol during the encounter in the hotel room. Both the former and Mrs. Cote testified to this fact.
Assuming the statement from the chart — “Patient was struck in the head with pistol butt in fight this afternoon”— should not have been excluded from the evidence and the court’s comments indicated should not have been made, we cannot charge prejudicial error here.
The authorities support the view that it becomes a harmless error to sustain objections to a material inquiry or exclude a fact in evidence, if subsequently the matter is fully disclosed by the testimony without objection. Birmingham Bottling Co. v. Morris, 193 Ala. 627 , 69 So. 85 ; Berry v. Dannelly, 226 Ala. 151 , 145 So. 663; Kendrick v. Cunningham, 9 Ala.App. 398 , 63 So. 797 .
It is the rule, also, that it is harmless error to exclude a statement in evidence if another witness, without objections or contradictions, had given testimony to the same facts. Powell v. State, 5 Ala.App. 75 , 59 So. 530 .
If we concede — but we do not decide — that the action of the lower court in the instant inquiry was against the rules appertaining, we are convinced and do hold that appellant has not carried the burden of showing probable prejudicial harm affecting his rights. This burden is upon him. Alaga Coach Line Inc. v. McCarroll, 227 Ala. 686 , 151 So. 834 , 92 A.L.R. 470 ; Howell v. Dodd, 229 Ala. 393 , 157 So. 211 . See also, Williams v. State, 28 Ala.App. 481 , 189 So. 81 ; Supreme Court Rule 45, Code 1940, Tit. 7, Appendix.
We entertained the view herein expressed when we prepared the original opinion in this cause. No reference was *273 made to the inquiry in appellant’s initial brief. We concluded that it did not contain meritorious authoritative value; therefore, we omitted to treat the matter.
Opinion extended.
Application for rehearing overruled.