Huckabee v. State , 168 Ala. 27 ( 1910 )

SIMPSON, J.

The appellant was convicted of the larceny of $50.

Without noticing other causes, the demurrer to the application for a change of venue was properly sustained on the ground that it was not verified by the oath of the defendant. — Code 1907, § 7851.

There was no error in sustaining the demurrer to the plea, of former jeopardy, as the plea shows that the former trial was for an entirely different offense from that for which the defendant in this case was placed on trial. The fact of larceny could not be an issuable fact in the trial under an indictment for murder. There was no error in not sustaining the challenge to the juror, Givhan. The special act with regard to the competency of jurors in Marengo county does not require the juror to be a householder or freeholder, nor a citizen of said county, but only a “resident.” — Loc. Acts 1898-99, p. 1444. The juror answered that he resided in Marengo county, but paid his poll tax and voted in Perry county. In- order to become a resident of another locality, it is not necessary that the party change his citizenship or his domicile. — 7 Words & Phrases, 6151 et seq. It matters not whether the juror was properly paying his poll tax and voting in Perry county or not; the fact remains that he stated positively that he resides in Marengo county.

With regard to the testimony touching the incidents of the murder of Bradford, the bill of exceptions does not show that any objection was made to the questions, but rather indicates that no objection was made until after the witness had been allowed to testify fully. A party cannot speculate on what testimony a witness will give, and then move to exclude. We must presume that the court properly overruled the objection.

There was no error in overruling the objection to the question to the witness Ford, “Tell the jury what happened,” as it did not necessarily call for illegal testimony, and the answer shows that the facts stated were pertinent to the issue in this case.

The testimony as to whether the witness lit the lamp was properly admitted, as it was a part of the res gestae of the taking of the articles from the trunk, and illustrated the opportunity of the witness to see what was taken.

For reasons already stated, and others apparent on the record, there was no error in admitting or excluding evidence in the further progress of the case.

In the opinion of Dowdell, C. J., and Evans, J., and of the writer, the facts set out in the hill of exceptions in regard to the charges requested by the defendant show that they were all asked in bulk, and were acted on in bulk by the court. Consequently, if either one of them was properly refused, the court cannot be placed in error for refusing all, and the general charge and several others were properly refused.

Anderson, McClellan, Mayfield, and Sayre, JJ., think that the rule with regard to charges in bulk does not apply to this case; that without entering into a critical examination of the charges, a greater part of which are bad, charge 19 should have been given, which reverses the case.

McClellan, J., concurs in the result, though not concurring in all that is said about the effect of paying poll tax and voting in another county.

The judgment of the court is reversed and the cause is remanded.

Reversed and remanded.

Anderson, McClellan, Sayre, and Mayfield, JJ., concur. Dowdell, C. J., and Simpson and Evans, JJ., dissent.