before the time of the alleged crime, as the cause of her unfriendly feelings.

On the examination of the defendant, the same questions tending to show bad feelings between him and this witness were allowed, and the same line of questions as to the existence of illicit relations was excluded, an exception being duly reserved in each instance.

Messrs. Hill, Hill, Whiting, & Thomas, for appellant:

The court erred in its rulings on the evidence in refusing to permit the defendant to show the bias of the state's witnesses.

40 Cyc. 2066, 2067, 2070; 28 R. C. L. 615; Martin v. State, 125 Ala. 64, 28 So. 92; Rarden v. Cunningham, 136 Ala. 263, 34 So. 26; Fincher v. State, 58 Ala. 215; Jackson v. State, 156 Ala. 93, 47 So. 77; Shepherd v. State, 135 Ala. 9, 33 So. 266; Rutledge v. Rowland, 161 Ala. 114, 49 So. 461; Lodge v. State, 122 Ala. 98, 82 Am. St. Rep. 23, 26 So. 210; Byrd v. State, 17 Ala. App. 301, 84 So. 777; Tapscott v. State, 18 Ala. App. 67, 88 So. 376; Huskey v. State, 16 Ala. App. 485, 79 So. 159; Cranford v. State, 16 Ala. App. 68, 75 So. 274; Harwell v. State, 11 Ala. App. 188, 65 So. 702; Wheat v. State, 2 Ala. App. 242, 57 So. 68; Jones v. State, 76 Ala. 8.

Mr. Harwell G. Davis, Attorney General, for the State.

Somerville, J., delivered the opinion of the court:

For the purpose of showing that the testimony of a female witness who had testified for and favorably to the defendant was biased in his favor, it has been held proper to ask her on cross-examination if illicit relations had not existed between her and the defendant. Martin v. State, 125 Ala. 64, 28 So. 92.

In the instant case, for the purpose of showing that the prosecuting witness was unfriendly and unfriendly and biased against the defendant, it was proposed to show, on the cross-examination of the witness, as well as on the direct examination of the defendant, that illicit relations had recently existed between them, before a "falling out" or misunderstanding; one question to the witness be

ing, "Were you not mad with this man because he would not come back to you?" and another, "Is it not a fact that you were mad with him, that you had made a demand upon him that he cover a house for you on account of your illicit relations, and he declined to do it?" and still another, "Isn't it a fact that you all had an illicit relation, and when it was broken up you told him you were going to get even with him?"

Witnesses

When a witness denies any feeling of hostility or unfriendliness towards the party against whom he has testified injuriously, it is the party's right to inquire, on cross-examination, as to the existence of any fact, including previous relationship, Of showing blascourse, which in the icit relations between parties. light of human experience might reasonably engender hostility towards the party, or affect the witness with partisan feeling, and thus impair the trustworthiness of his testimony. Southern R. Co. v. Harrison, 191 Ala. 436, 67 So. 597. And it has been held that, even though the witness admit unfriendly feeling, the adverse party may go further and show its foundation and extent by reference to conduct and declarations and circumstances, but without entering into particulars. Fincher v. State, 58 Ala. 215, wherein the subject is fully discussed. So the question here is simply upon the logical relevancy of such a status of illicit sexual intimacy, thus ruptured and discontinued by the defendant, to show a cause for resentment on the part of his former paramour, and thereby to establish inferentially a sentimental bias which was capable of affecting her testimony.

Without professing any profound understanding of the psychology of ruptured amours, and their emotional reflexes, we do not doubt that, as human nature goes, the facts here sought to be elicited from this witness were relevant and competent for the purpose for which they were offered, and we think the trial court erred in excluding the questions

above referred to, and others of like tenor.

This is not denying the rule that the details of a quarrel or difficulty cannot be gone into for the purpose of showing hostility. But it is proper, even before the witness has denied hostility or bias, to inquire as to their existence because of some designated fact or transaction affecting the witness and his relation to the party. This is well illustrated in the case of Sanford v. State, 143 Ala. 78, 39 So. 370, where it was held error to exclude the defendant's question to a state's witness: "Is it not a fact that you and Sanford are unfriendly on account of a whisky bill you owe him?" That case cannot be distinguished in principle from the case before us. A similar example will be found in Shepherd v. State, 135 Ala. 9, 33 So. 266.

Of course the details of the illicit relation cannot be inquired into, and

the questions propounded did not undertake to do so. Fincher v. We have held

State, 58 Ala. 215.
State, 58 Ala. 215.

that those questions were proper on the cross-examination of the witness, Willie Houston. We do not think that such facts, other than declarations of the witness (Fincher v. State, supra), could be shown by other witnesses as independent evidence, because of the confusion and delay that would necessarily result from the injection and trial of a collateral issue of that scope and character.

We have treated the questions without regard to the privilege of the witness to refuse to incriminate herself by answering them,-a matter which is not presented. Sanford v. State, supra.

For the error pointed out, the judgment will be reversed, and the cause remanded for another trial. Anderson, Ch. J., and McClellan and Thomas, JJ., concur.

General rule.

It appears to be well established that for the purpose of showing bias a witness in a criminal prosecution is properly subject to cross-examination concerning any illicit relations with the defendant.

United States.--Murray v. United States (1917) 160 C. C. A. 96, 247 Fed. 874.

Alabama.-Martin v. State (1900) 125 Ala. 64, 28 So. 92. And see the reported case (MOTLEY V. STATE, ante, 276).

Georgia.-Brown v. State (1904) 119 Ga. 572, 46 S. E. 833.

Indiana. Smith v. State (1896) 143 Ind. 685, 42 N. E. 913.

Kentucky. Holly v. Com. (1896) 18 Ky. L. Rep. 441, 36 S. W. 532; Morrison v. Com. (1903) 24 Ky. L. Rep. 2493, 67 L.R.A. 529, 74 S. W. 277.

New York.-Sakolski V. Schenkel (1906) 50 Misc. 151, 98 N. Y. Supp. 190.

North Dakota.-State v. McGahey (1893) 3 N. D. 293, 55 N. W. 753.

Oklahoma. Castleberry v. State (1914) 10 Okla. Crim. Rep. 504, 139 Pac. 132; Phillips v. State (1922) Okla. Crim. Rep., 203 Pac. 902.

Texas. Crist v. State (1886) 21 Tex. App. 361, 17 S. W. 260; Sexton v. State (1905) 48 Tex. Crim. Rep. 497, 88 S. W. 348.

In Sakolski v. Schenkel (N. Y.) supra, with respect to cross-examination of a witness to show improper relations existing between the defendant and the witness, the court said: "While at first blush it might seem that the cross-examination was incompetent and irrelevant because it attempted to elicit improper relations. between the tenant and his witness, yet, inasmuch as there was a sharp conflict between the parties as to the question of fact relating to the term of hiring, concerning which both these witnesses testified, it became

important to inquire into the relations' existing between them, as bearing upon their interest and consequent credibility. . We cannot say that this testimony prejudiced the tenant's case."

In State v. McGahey (N. D.) supra, on cross-examination, the state's attorney was permitted, over objection, to interrogate a witness at length concerning her relations and criminal intercourse with the defendant. The court says: "The state has the right to show the relations existing between the witness and the party at whose instance, and presumably in whose interest, she was testifying. It had the right to expose to the jury every motive and desire of the witness that might naturally and reasonably be supposed to produce that bias that would affect the character of her testimony."

"A like ruling was made in Castleberry v. State (Okla.) supra, wherein the defendant called a witness who was cross-examined as to illicit relations between her and the defendant. The court said: "The witness

testified on her cross-examination that she was the sweetheart of the defendant. Here we have a very powerful motive for testimony in his behalf. She identified and admitted the photograph which shows that witness, in the presence of a third person, permitted the defendant to take indecent liberties with her person. We think the entire evidence upon the crossexamination, including the photograph, was properly admitted, as showing the nature of the relations existing between the witness and the defendant, and that their relations were such as would create a bias on the part of the witness that might reasonably be supposed to affect her credibility; and the fact that such evidence would probably prejudice the defendant in the minds of the jury did not affect its admissibility."

In Holly v. Com. (Ky.) supra, a witness was introduced for the defendant, and on cross-examination was permitted to answer that she and the defendant had been living together without being married. The court

said it was admissible for the purpose of showing her interest and probable bias.

The court in Martin v. State (Ala.) supra, held that it was competent to permit the state, on cross-examination of a witness introduced by the defendant, to show, if it could, their relations to each other, notwithstanding it involved their illicit sexual intercourse, for the purpose of showing her bias.

In Brown v. State (Ga.) supra, the court said that it was not error for the trial court to permit the solicitor general to ask one of the witnesses for the defendant if she was not his par

amour.

In a case wherein a witness for the defendant was cross-examined as to her being separated from her husband, and living in the same house with the defendant, the court said that the state had the right to show the relations existing between the witness and the defendant in order to show her bias and motives, which might explain her testimony. Crist v. State (1896) 21 Tex. App. 361, 17 S. W. 260.

In Morrison v. Com. (1903) 24 Ky. L. Rep. 2493, 67 L.R.A. 529, 74 S. W. 277, the trial court allowed the commonwealth to prove by cross-examination that the defendant and the witness had been for some time past living in improper relations. The evidence was held to have been properly admitted, as it explained the circumstances, illustrated the motives of the parties, and went to the interest of the witness to show bias.

Where it appeared that a witness, the wife of the person whom defendant was charged with attempting to poison, was asked as to whether she was in love with the defendant and had been intimate with him, the court held that in view of the crime with which the defendant was charged, and the relation that existed between the witness and the defendant, the question was material to the issue as tending to show the interest of the witness and her bias in favor of the defendant. Murray v. United States (1917) 247 Fed. 874.

In Sexton v. State (1905) 48 Tex. Crim. Rep. 497, 88 S. W. 348, the court said: "Nellie Carnes was a witness for appellant. On cross-examination, she was permitted to testify 'that she had lived in adultery with defendant for five or six years.' . . . This testimony was all admissible; and we think it was relevant for the purpose of showing her bias, and friendship and close relationship to appellant, and her interest in testifying in his behalf, and consequently as touching her credibility."

In Phillips v. State (1922) Okla. Crim. Rep. 203 Pac. 902, the defendant introduced his daughter, Ariel Goodson, as a witness in his behalf, who testified in support of an alibi. On cross-examination by the county attorney this witness was asked, in substance, if she was not the same young lady that came to the county attorney's office and made a sworn statement that her father (defendant) was the father of an illegitimate baby by her. The court said: "It is always proper to show by crossexamination the fact of immoral relations subsisting between the witness and the party for whom called."

Similarly, in Smith v. State (1896) 143 Ind. 685, 42 N. E. 913, the court said: "Evidence given as to the relations between appellant and the sister of the prosecuting witness may seem to have gone to too great a limit. This evidence was brought out on cross-examination of the sister of the prosecuting witness. She had testified in chief for appellant, and her evidence was most favorable to him. We think that it was in the discretion of the court to allow the state to show her relations with the appellant, as affecting bias in his favor on her part."

The rule is applied to a witness for the prosecution in the reported case (MOTLEY V. STATE, ante, 276) wherein it is held that, for the purpose of showing bias and unfriendly feeling

against the defendant, the prosecuting witness may be cross-examined concerning her former illicit relations with the defendant. Limitation of rule.

There are at least two decisions which lay down a limitation to the general rule stated in the preceding the natural effect of the cross-examisubdivision, to the effect that, where

nation of a witness as to illicit relations with the defendant would clearly be other than to show bias, the questions may be excluded. Smith v. State (1919) 86 Tex. Crim. Rep. 455, 217 S. W. 154; Rex v. Paul (1912) 4 Alberta L. R. 377, 19 Can. Crim. Cas. 339, 5 D. L. R. 347, 21 West. L. R. 699.

Such cross-examination was held to be improper in Smith v. State (Tex.) supra, wherein a witness was crossexamined as to her having had illicit relations with the defendant. The court said: "We think such evidence inadmissible. The witness was a common prostitute, so that her bestowal of carnal favors upon appellant, for money or otherwise, would not affect her bias or interest as a witness in the case, and, appellant being charged with rape upon a sister,-a younger girl than witness, who was herself barely over the age of consent, the fact that he had intercourse with the sister of prosecutrix could only be prejudicial and injurious to the appellant."

In Rex v. Paul (Alberta) supra, wherein the complaining witness testified in direct examination against the defendant charged with rape, and on cross-examination admitted that she would like to see the defendant sent to the penitentiary for life, the court held that it was error, for the purpose of explaining such animosity against the defendant, to allow further re-examination proving that the defendant had committed several prior indecent assaults on the witR. E. LaG.

ness.