Lowman v. State , 167 Ala. 57 ( 1910 )

SIMPSON, J.

The appellant was placed on trial for the crime of murder in the second degree and convicted of manslaughter in the first degree.

One Bailey, who had been a witness for the defendant, but was discharged after he had been summoned as a juror, was challenged for cause by the state and the cause sustained. There Avas no error in this. While subdivision 10 of section 7276 of the Code 1907 mentions as one of the causes “that he is a witness for the other party,” yet it Avould be defeating the purpose of the statute to permit a party to render his witness competent as a juror against the objection of the state by discharging him as a witness after he had been summoned as a juror. It has frequently been held that one who has been summoned as a witness for the other party may be challenged for cause. — Baldwin v. State, 111 Ala. 11, 20 South. 528; Commander v. State, 60 Ala. 1.

On the authority of Johnson v. State, 102 Ala. 1, 16 South. 99, the court did not err in permitting the state to ask the witness George White on redirect examination why he went to the defendant’s wife to get a statement from her, nor in overruling the objection to the answer, to wit, “I went to her to ascertain whether my son or I was right as to what defendant said his wdfe had told him about Ellis going into the house.” The court’s remark that the testimony ivas admitted in explanation of the interest of the wdtness in going to defendant’s wdfe to get her statement brought the testimony within the exception noted in said case.

There ivas no reversible error in overruling objections to the question to the defendant as to where Andy Cunningham was, or to the answer thereto. The court is satisfied that no injury resulted to the defendant by permitting the question to the defendant as to whether he had testified in the federal court and his answer that he had at one time it not appearing what the testimony was. — Code 1907, § 6264.

There was no error in admitting the declaration of Cunningham, made in the presence of the defendant, that they were going to wdiip the deceased. The wdtness stated that both the defendant and said Cunningham made the declaration. It tended to show with what purpose defendant sought the deceased and had a bearing on the question as to who was the aggressor.

The ansiver of the Avitness Bradley White as to whether or not the deceased Ava.s in the habit of cursing or swearing, to wit, “Not to my knowledge,” did not result in any injury to the defendant. If he had doubted wdiether the wdtness knew what the habit of the deceased was, he could have questioned him as to his knowledge.

The judgment of the court is affirmed.

Affirmed.

Dowdell, C. J., and Mayfield and Sayre, JJ., concur.