Rossett v. State , 16 Ala. 362 ( 1849 )

DARGAN, J.

The plaintiff in error was indicted for retailing spirituous liquors in less quantities than a quart- A witness was examined by the defendant, who- stated that one Joseph, who had been examined as a witness on the part of the State, gave him a dime and requested him to go and buy liquor of Rossett, the defendant. Joseph went with the witness to the grocery store of Rossett, and called for spirits.— . Rossett replied that he had none, but if they wanted some, he would go and get if, which he did. After drinking,, the witness offered the dime in payment, but the defendant refused to receive pay. It was also shown, that Joseph was displeased with Rossett, and the object of giving the witness the dime and taking the drinks was to entrap him. Joseph had sworn, that he had frequently drank at the store of the defendant and paid for it, before he gave the dime for the purpose aforesaid. Upon this evidence, the defendant requested the court to charge the jury, that if they believed the dime was given- by Joseph to the witness for the purpose of entrapping the- defendant, they might consider it as a circumstance tending to.-show that .Joseph had no proof before that time that would convict the-defendant. This charge the court refused, but certified the question to this court as one novel and difficult.

Although the conduct of Joseph in endeavoring! to entrap. Rossett, and his feelings of displeasure towards him, were properly admitted as evidence, yet we do not think that the-court erred in refusing the charge requested. In criminal prosecutions it is permissible, on the part of the accused,, to show that the feelings of the witnesses, who testify for the State, are hostile to him. 1 Greenl. Ev. § 4,50. Such evidence, however, is permitted to go to the jury, for-the sole purpose of impeaching the testimony of the witness who has-deposed under such a state of feeling, and the jury are the sole judges whether they will give any weight to his testimony,, or whether it is entitled to beleif. They ase to judge of the testimony tending to prove hostility of feeling, and. also how far, or to what extent, this hostility of feeling; — if they- find a witness has testified under its influence — shall impeach or destroy his testimony. The charge requested in this case, however, would treat the evidence introduced by the defendant as proof, tending to disprove a particular fact. This was correctly refused. The only legitimate charge that could have been given in reference to this testimony, was that it tended to impeach the credibility of the witness Joseph. This was the purpose for which it was introduced, and for this purpose only was it competent testimony.

The question of the jurisdiction of the Criminal Court of Mobile is not certified to us, nor brought before us by writ of error. We cannot, therefore, examine it.

The judgment must be affirmed.