King v. State , 100 Ala. 85 ( 1893 )

HEAD, J.

Most of tbe exceptions reserved, botb as to tbe evidence and instructions, are so manifestly without merit, we will not take tbe time to point out tbeir infirmities. It would serve no useful purpose to do so.

"Wben remarks of counsel, in addressing tbe jury are thought to be out of place and prejudicial to tbe opposite party, tbe court should be moved to exclude them. It is not sufficient, in order to have tbe matter passed upon by this court, to merely express objection to the- remarks without invoking action on tbe part of tbe court. We review tbe rulings of tbe court only. In tbe present case, tbe court, wben asked to do so, excluded what tbe solicitor bad said. That was all it could do and it left nothing to be assigned as error here.

Tbe person alleged to have been assaulted was examined as a witness for the State, and be testified that tbe defendant shot him on tbe arm. Tbe defendant, in cross examination, as tbe bill of exceptions recites, “offered to exhibit tbe arm of tbe witness to tbe jury, and tbe State objected, tbe court sustained tbe objection and tbe defendant excepted.” We tbink the court erred in tbis ruling. No question was raised by tbe witness, court or counsel as to tbe delicacy of tbe proposed exhibition of tbe witness’ arm. Indeed, no such question was involved. Tbe arm could have been laid bare, and tbe wound or scar, if any there was thereon, shown to tbe jury, without offense to tire modesty or delicacy of feeling of tbe witness, of the court or tbe persons present in tbe court room. Tbe condition of tbe arm, in view of tbe testimony that a pistol shot wound bad been inflicted thereon, and tbe conflicting testimony as to tbe direction from which tbe shot was fired, might have afforded tbe jury valuable aid in determining vital questions under consideration. It has often been ruled that a plaintiff, suing for personal injuries will be required to exhibit tbe injured parts to tbe jury, if it appears necessary to tbe ends of justice, and does not involve an indecent exposure of tbe person. 1 Thomp. on Trials. § 858. Por greater reason, it would seem, should a witness in a criminal cause be required, in such a case, to furnish evidence of that kind. Williams v. The State, 98 Ala. 52.

There is no merit in any of tbe other exceptions. ' For tbe error mentioned tbe judgment of the county court is reversed and tbe cause remanded. Let tbe prisoner remain in custody until discharged by due course of law.