Floyd v. State , 30 Ala. 511 ( 1857 )

WALKER, J.

The question propounded by the attorney-general in the court below, to which the defendant excepted, was not illegal. It was not leading, (1 Green-leaf on Ev., § 434,) nor was it objectionable iu any other respect as to form, as is settled in the case of Yarbrough v. Hood, 13 Ala. 176. ,

The objection to the interrogatory of the attorney-general gives rise to the question of the relevancy, in this case, of evidence that the defendant knew his son went to school in 1854. Such evidence would be relevant, if it was material upon the trial of the case on the trial of which it is alleged that the defendant swore falsely. If it was immaterial, it was incumbent upon the party excepting to show, by setting out the facts in the bill of exceptions, that such was the case. The bill of exceptions not only does not show that such evidence was immaterial upon, the trial of the case in which the defendant testified, but we can very well conceive that it may have been material and important.

The charge asked was, for the same reason, properly refused. It would not have been proper for the court to charge the jury that the defendant’s knowledge of his son’s being at school in 1854 was immaterial, unless the court could, from the evidence, see and ascertain its immateriality. The evidence is not set out in the bill of exceptions, and we cannot say, in its absence, whether the immateriality of the defendant’s knowledge, in the particular stated, or the reverse, was apparent to the court below; and, therefore, we cannot decide that the court below erred. It is not sufficient to authorize a reversal, that the correctness of the ruling of the court below is not shown, but it is requisite that its incorrectness should appear.

The objection, that it does not appear from the record that any of the grand jury besides the foreman was sworn, comes too late, when made for the first time in this court. See Code, § 3591.

The judgment of the court below is affirmed, and its sentence must be executed.