Cox v. State , 23 Ala. App. 86 ( 1928 )

Refused charge 21, besides being an argument, was covered by the oral charge of the court and in the given written charges requested by defendant, not in exact language, but every principle of law embraced in the charge was given to the jury more than once.

The fact that defendant was seen near the still at the time of the arrest was a material inquiry and relevant to the issues.

The reasons why a witness went to a place is immaterial, and hence the court did not err in sustaining the objection of the state to defendant's question to a witness: "How come you to go back there the second time?"

When this case was here on former appeal, we held that the pointing out of the still place by Livings, the sheriff, to others, and their testimony regarding the location of the still based upon information as to location furnished by Livings, was hearsay and constituted reversible error. Cox v. State (Ala.App.) 112 So. 898.¹ We are now asked to hold that the defendant may point out the still place to outside parties, and that based upon this information these parties may testify as to the location of the still. The rule is still the same as on former appeals. Evidence offered from parties whose testimony is based upon information furnished by defendant is hearsay and inadmissible.

The various ruling of the court relative to this testimony were free from error.

The remark of the solicitor, to which exception was reserved, was free from error.

The questions of guilt vel non and of venue were for the jury, and hence the charges demanding affirmative relief were properly refused.

Affirmed.

¹ 22 Ala. App. 102.