Miller v. State , 16 Ala. App. 3 ( 1917 )

The defendant, Fayette Miller, was tried and convicted in the circuit court of Franklin county on the charge of public drunkenness and from a judgment of conviction he appeals.

The objections to the evidence set out on pages 3, 4, and 5 of the transcript, in each instance having been made after the witness had answered the question, came too late to authorize this court to review the action of the lower court. Smith v. State, 183 Ala. 10, 62 So. 864.

The defendant objected to the question asked the witness Thompson, as set out on page 3 of the transcript, but he did not object to the answer, nor did he move to exclude the same; therefore any supposed error of the court was waived; besides, the question was entirely proper.

The court did not err in refusing to allow the defendant to show by the witness Sims "that the prosecution was begun in his (Sims') court by Lindley, and that Lindley was mad at Miller," it not having been shown that Lindley was the prosecutor, nor does it appear that he had testified in the case.

Charge D was fully covered by charge X; and therefore its refusal was not error. Smith v. State, 165 Ala. 50, 51 So. 610. Besides, the charge was bad. Diamond v. State, 15 Ala. App. 33,72 So. 558.

The court did not err in refusing charge No. 1. The evidence in this case was positive, and this charge was inapplicable, as it charged on circumstantial evidence. Bailey v. State,168 Ala. 4, 53 So. 296, 390. Besides this, the charge was misleading and argumentative, and for these reasons was a bad charge.

We find no error in the general charge of the court. The court did not make the statement or undertake to tell the jury what the evidence was. He only hypothesized, as he had a perfect right to do, in illustrating to the jury the law of the case.

We find no error in the record. It follows, therefore, that the judgment of the lower court must be affirmed.

Affirmed.