McClellan v. State , 117 Ala. 140 ( 1897 )

BRICKELL, C. J.

1. A specific objection to evidence illegal or irrelevant on its face, has never been deemed necessary. — 1 Brick. Dig. 887, § 1189; Washington v. State, 106 Ala. 58; Gunter v. State, 111 Ala. 23. Within this category, falls the conversation between the witness Bray and one Martin, before going to the defendant’s house or place of business. As to the defendant the conversation -was mere res inter alios acta by which he cannot, and ought not to be affected.

2. The refusal of the court to put the witness Bray under the rule, compelling his withdrawal from the courtroom, was matter resting in the-sound discretion of the trial court, and is not revisable. — McGuff v. State, 88 Ala. 147; Ryan v. Couch, 66 Ala. 244.

3. The defendant having introduced evidence tending to discredit the witness Bray, it is not to be doubted, that it was competent' for the State to support him by calling witnesses to show that his general character was good. The'mode of examination of witnesses as to character usually pursued, is to inquire.of the witness if he knows the general character of the person in question in the neighborhood or community in which he resides, and if he answers affirmatively, to inquire whether that character is good or bad. The witness is, of course, subject to cross-examination as to the soufces and extent of his knowledge and information ; and ordinarilly, the court will not on the preliminary inquiry determine whether he has sufficient knowledge of the fact to enable him to testify, but will leave the value of his testimony to be determined by the jury. — 1 Green. Ev., § 461. The court below did not determine that the witnesses Clark and Cross were qualified to testify as to the character of Bray, upon the mere expression by them that they thought they knew his general character. It was not until they affirmed as a fact that they knew it, they were permitted to answer the further inquiry whether it was good or bad. Witnesses not infrequently upon the preliminary inquiry,, employ expressions of this kind, but if accompanied by positive affirmation of knowledge of the fact involved, at most, such expressions are mere matter of comment to the jury.

4. The indictment is in the form prescribed by the Code, not alleging the person to whom the sale of the whiskey was made. If there was a sale, all the evidence tends to show that Martin, not Bray, was the buyer. Bray furnished the money, but it was furnisned for the purpose of enabling Martin to buy, and he alone was known, to, or dealt with the defendant as bqyer. The first instruction requested by the defendant was therefore not relevant to the evidence — it was abstract. The second instruction was faulty because of the omission of the word reasonable as expressive of the doubt requiring an acquital.

5. The third instruction should have been given upon the authority of Grimes v. State, 68 Ala. 169; Childs v. State, 76 Ala. 93; Jordan v. State, 81 Ala. 31; A. G. S. R. R. Co. v. Frazier, 93 Ala. 51. The fourth instruction, the original of which has been certified here for inspection, was intended to assert the proposition embodied in the third; it is not very clearly.expressed, and for that resason Avas, perhaps, properly refused ; if this be true, upon another trial, the insufficiency may be avoided.

For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.