Stevenson v. State ( 1921 )

BRICICEN, P. J.

The defendant was indicted for murder in the first degree. On January 5, 1920, the defendant was duly and legally arraigned upon this indictment, and, being present in open court and attended by his counsel, he pleaded not guilty, and the 9th <jay of January, 1920,'was set as the day for the trial. On that day (January 9, 1920) the defendant for the first time filed a plea in abatement to the indictment." The court sustained the motion of the solicit- or to strike said plea, upon the grounds that the defendant had on a prior day of the court pleaded to the merits of the indictment and that therefore his plea in abatement came too late. This ruling of the court is insisted upon as being error, but under the statute (Code 1907, § 7573) and several decisions of this court and the Supreme Court it appears that the ruling was without error. Crawford v. State, 112 Ala. 1, 21 South. 214; May v. State, 115 Ala, 14, 22 South. 611; Rogers v. State, 166 Ala. 10, 52 South. 33; Wise v. State, 11 Ala. App. 72, 66 South. 128; 4 Mich. Ala. Dig. p. 113, sec. 176.

The motion to Nquash the venire was properly overruled. Acts 1909, § 29, p. 305; Clarence Reeves, alias Cecil Welton, v. State, 17 Ala. App. 684, 88 South. 197; Sallie Garner v. State, 206 Ala. 56, 89 South. 69.

On cross-examination of the sheriff, George Mitchell, and the deputy sheriff, Dewey Mitchell, the court sustained the state’s objections to numerous questions propounded by defendant’s counsel to these witnesses, by which the defendant sought to show the whereabouts of one Aaron Bláek, the negro man who, it was proven without dispute, bought a pint of whisky from defendant in the presence of deceased and Deputy Sheriff Dewey Mitchell on the night of and just immediately before the killing of Anderson. In this there was no error. The person in question had not been ordered subpoenaed by either side as a witness in the case, and it does not appear how his whereabouts at the time of the trial could shed any light upon the issues involved.

If the purpose of this cross-examination was, as stated by the defendant’s counsel, “I am asking that, to know where he is, in order to use him as a witness,” this would not be sufficient to show the relevancy or even admissibility of such testimony, as no request was made by defendant that a subpoena be issued for this man as a witness before entering upon the trial or during the progress thereof. The well-recognized rule is that a wider latitude is allowable on cross-examination than upon the direct examination of a witness. This latitude is usually permissible for the purpose of testing the memory, sincerity, etc., of the witness, and while no universal rule can be laid down, it has been always held that this is a matter which necessarily must be left largely to the discretion of the trial court, and unless such discretion is abused the rulings of the trial court will not be revised on appeal. No such abuse is shown by the record here, and there was no error of a prejudicial nature committed by the court in this connection.

Other rulings of the court upon the testimony, to which exceptions were reserved, have been examined, and are free from error.

At the request of defendant, the charge of the court to the jury was made in writing. This charge has had our very careful consideration, and we are of the opinion that the criticism to the effect that portions of the charge were upon the effect of the evidence, and therefore error, is not well taken. Murray v. State, 13 Ala. App. 175, 69 South. 354. We are also of the opinion that the-charge when taken and considered as a whole, and it must be thus considered, is free from error prejudicial to the substantial rights of the defendant. The court appears to have fairly stated the tendencies of the evidence on both sides, as well as the law applying to the theory relied upon both by the state and the defendant, and under this charge it was for the jury to say whether the version of the state or that of the defendant was correct. Blevine v. State, 204 Ala. 476, 85 South. 817.

In the refusal of several written charges requested by defendant, the court indorsed upon each of these charges the reason for its refusal. This is a wise and proper precaution, and tends to assist this court in passing upon questions of this character. Each charge refused to defendant was properly refused, and the reasons assigned by the trial judge for their refusal appear to be well stated. Charge 1 was elliptical and argumentative. Charge 5 does not state the law correctly, and the remaining refused charges are each clearly upon the effect of the evidence, as stated by the -trial judge in passing upon them. Their refusal was without error.

Finding no error in the record, the’judgment of conviction is affirmed.

Affirmed.