Maxwell v. State , 12 Ala. App. 212 ( 1915 )

THOMAS, J.

Appellant was convicted of violating the prohibition law.

The first exception shown by the record relates to the action of the trial court in refusing to allow defendant’s question to the state’s witness Haralson on cross-examination as to whether or not it was probable that the witness, who testified that he had purchased beer from defendant, was mistáken as to the identity of the defendant. This clearly called for the conclusion of the witness upon matters not requiring expert knowledge, and upon an issue Avhicli it was the peculiar province of the jury to find. The witness was permitted fully and in detail to state on cross-examination as to the time, place, circumstances, and conditions under which he bought the beer, and as to the resemblance between defendant and defendant’s son, and as to how long he had known each and how often he had seen them. He testified that he bought the beer at defendant’s house; that the room wherein the beer 'was delivered to him was “sort of dark” on the inside, the doors being closed, and there being-shades over the windows; that the party Avho sold him the beer Avas in the room, and never came on the outside; that Avitness’ eyes Avere weak; but that it was his best judgment that it Avas defendant, and not defendant’s son, Avho resembles defendant, that sold and delivered Avitness the beer. As to Avhether or not the defendant was “probably mistaken,” in his best judgment Avas a question for the jury, and the court committed no error in this case in sustaining the state’s objection to the question mentioned.

The fact that the court permitted the state to ask, over defendant’s objection, the witness if he had had a conversation Avith defendant since being summoned as a Avitness, if error, was without injury, since the Avitness ■ ansAvered in the negative.

Defendant’s counsel asked defendant, when on the stand as a Avitness for himself, substantially, “Do you know Avhether or not Detective Stone has talked to your ivitness Odum, avIio has left here this morning, and is not present to testify?” The court sustained an objection to the question, Avhen defendant’s counsel then announced, “We propose to prove that he has talked to him,” and excepted to the action of the court in sustaining the objection. It ivill be observed that there is no suggestion in the announcement that the talking, Avhich defendant offered to prove, that had been done by Stone to defendant’s Avitness, ivas with reference to or about this case; but, even if it was, there Avould be no error in the action of the court in declining to permit the proof, since any bias or interest that may have been displayed by Stone in the prosecution, even if it Avent to the extent that he induced or frightened defendant’s Avitness said Odum into leaving court before testifying, and any intimidation that Odum may have felt, Avould be immaterial to the consideration here, since neither Stone nor Odum testified at the trial. Such proof Avould be of value in a contempt proceeding against Stone, but certainly of none on this trial.

Charge 1 refused to the defendant Avas argumentative, and sought to single out, and give undue prominence to, a portion of the testimony.

Charge 2, besides being othenvise faulty is abstract; since the Avitness Haralson referred to in the charge testified that, in his best judgment, the person from whom he bought the beer Avas defendant.

We find no error in the record, and the judgment of conviction is affirmed.

Affirmed.