Beal v. State , 138 Ala. 94 ( 1902 )

HARALSON, J.-

1. The mortage set out in the indictment purports to haAre been signed by F. A. Beal, and witnessed by Frank Leigh and Arthur Wellborn.

The bill of exceptions recites that “Frank Leigh, witness for the State, upon being handed the mortgage set out in the indictment, testified, that the signature, Frank Leigh, signed to said mortgage was his signature.” J. W. McElrath testified for the State, that he was present in the bank at the time said mortgage was giA'en and saAV defendant sign the same, and the Avitnesses thereto signed it as Avitnesses, while the defendant Avas present, and before the money was paid to him. M. B. Wellborn, the president of the bank, testified, that he was present at the time, as Avere defendant, Leigh, McElrath and Arthur Wellborn; that he kneAV the "defendant, and he was the man Avho signed the mortgage to secure the indebtedness therein, and that when the mortgage became due, he tried to find F. A. Beal and the property mentioned in the mortgage but could find neither. On the cross, defendant’s counsel asked witness : “Did you not, last Fall, prosecute defendant by swearing out a warrant against him for selling mortgaged property, — the same property mentioned in your mortgage?” 6n objection made by the solicitor, the question was not allowed to be answered. In this there was error. If the witness had sued out the warrant inquired about, it might have implied bad feeling towards the defendant at that time, but whether so or not, or whether any bad feeling, if any, continued or not, were questions for the jury. This case is clearly distinguishable from the case of O’Neal v. Curry, 134 Ala. 217.

2. The witness Leigh, testified that he attested the mortgage as a witness, and McElrath testified that he saw defendant sign it. This evidence of its execution, was sufficient to authorize its admission in evidence. The mortgage is not set out in the transcript, though the evidence tended fully to identify it with the one set forth in the indictment. Without its being set out this court could not pass intelligently on defendant’s objection to it, — that there was a variance between it and the one copied in the indictment. The burden was on the party taking the bill of exceptions, to affirmatively show error to his prejudice, or the ruling will not bo disturbed. — Burns v. The State, 49 Ala. 370; Shelton v. St. Clair, 64 Ala. 565; Burgess v. A. G. S. R. R. Co., 115 Ala. 473.

3. There was no error in sustaining an objection to the question asked the witness, John Crook, who was clerk in the probate office, viz.: “In copying a paper on the record, do you always undertake to copy it as it is?” A record is proved, not in the manner attempted, but by the production and inspection of the original or of an exemplified or authenticated copy. — -King v. Martin, 67 Ala. 177; Pearce v. Clements, 73 Ala. 258.

4. The witness, Lester, for the State, had testified, that he had the mortgage in question for collection in the Fall of 1902, and was unable to find the property or defendant, F. A. Beal — the mortgagor; that he had known the defendant for several years, and had known him as W. E. Beal, and that he had gone to the house of defendant’s father, looking for F. A. Beal. The defendant’s father, J. F. Beal, had testified that the defendant and another one of his sons lived with him in the Fall of 1902; that defendant’s initials were W. E. F. A. Beal, and he sometimes, in signing 1ns name, used W. E. and sometimes F. A. Bealthat he remembered Lester coming to his house, claiming to have a mortgage given by defendant to one- O. J. Porter; that Lester said nothing about .a mortgage by his son to the bank, made no inquiry for F. A. Beal while he was at witness’ house, and that witness pointed out to him property belonging to defendant. E. L. Lester ivas recalled in rebuttal, and testified that defendant’s father did not show him property that belonged to defendant, and besides, that he had no mortgage given by defendant to C. J. Porter. The court asked the witness: “Did you, when you Avent to the house of defendant’s father, ask defendant’s father for F. A. Beal?” In this there aves no error. The evidence called for was relevant. It is always permissible for the court and its duty, to propound to Avitnesses such questions as it is deemed necessary to elicit any relevant and material evidence, without regard to its effect, — whether beneficial or prejudicial to the one party or the other. The development and establishment of the truth is its province and duty. — Sparks v. State, 59 Ala. 82.

5. Charge 1 requested by defendant and refused Avas a substantial repetition of charge 1 given for him, and was, therefore, properly refused.

Charge 2 refused to defendant asserts a correct proposition of laAV, and was not substantially given, as contended, in either of the given charges 1 and 2.

For the errors indicated the judgment must be reversed.

Reversed and remanded.