Burger v. State , 83 Ala. 36 ( 1887 )

STONE, C. J.

— The Criminal Court committed no reversible error in allowing the witness, Henry Davis, to be asked on cross-examination, if he did not tell the officer, in reply to an inquiry, that he did not know where the defendant was. Much latitude must be allowed on cross-examination, and much must he intrusted to the enlightened discretion of the presiding judge. — Ingram v. State, 67 Ala. 67; Sylvester v. State, 71 Ala. 17; DeArman v. State, Ib. 351. Any testimony, tending to show bias or partiality of the witness to the party in whose behalf he has testified, is admissible on cross-examination. Even questions which call for criminating answers, may be allowed by the court on cross-examination ; but, if the witness is unwilling to answer such question, he must not be forced to do so. Witnesses can not be required to criminate themselves, if they claim their constitutional exemption. What we have said relates to ordinary witnesses. If defendants in criminal prosecutions elect to make statements, or testify in their own behalf, rules somewhat different are applied. — Clarke v. State, 78 Ala. 474.

The affirmative charge instructed the jury, that it was not necessary to a conviction that the defendant should have removed the horse from Glenn’s premises; that if the horse was taken away by some one other than the defendant, or got away himself, and the defendant afterwards feloniously took and carried him away, he would be equally guilty as if he had taken the horse from the premises of the owner. This charge asserted nothing more than that the horse could be the subject of larceny, even though, at the time, he had been removed, or had strayed from the premises of his owner. It is scarcely necessary to cite authorities in support of this proposition. — Griggs v. State, 58 Ala. 426. There was no error in giving this charge.

What we have said above demonstrates that the trial court did not err in refusing the second and third charges asked by the defendant. Each of them bases the right of acquittal on the fact, if found to be a fact, that the defendant did not leave his house during the night, when it is claimed the horse escaped, or was carried from the premises of his owner; in other words, that unless the defendant took the horse from the premises of the owner, and during that night, he could not have committed the larceny. This is diametrically opposed to the .principle declared in the affirmative charge, commented on above.

There are many objections to the first charge asked by the defendant and refused. This charge, we suppose, rests on the testimony of the witness Henry Davis. Davis testified, that he last saw defendant on Tuesday after the horse disappeared (Sunday night), and that he was sitting at the root of a tree, near Sloss’ Factory. This was about two o’clock. Tbe criminating witnesses testified, that tbey saw tbe defendant riding tbe borse tbe same evening. One stated, that be saw tbe defendant riding tbe borse between three- and four o’clock, p. m. ; tbe other, between four and five o’clock, on tbe said Tuesday. Each of these witnesses describes tbe street in which tbe defendant was seen. We have no means of ascertaining tbe distances between tbe places where tbe witnesses claim to have seen the defendant, and Sloss’ factory, or Sloss’ furnace, if they'be one and tbe same. The testimony furnishes no data. Tbe charge claims an acquittal unless the jury believe, beyond a reasonable doubt, that .the defendant was not near Sloss’ furnace at tbe time be is said to have been seen on said Tuesday evening. We can not know, from any thing shown in tbe record, that the defendant was not at tbe tree near Sloss’ furnace at two o’clock, and riding tbe horse at tbe places named by tbe witnesses, between three and four, and four and five o’clock, p. m. Tbe record, therefore, fails to show error in this ruling.

Affirmed.