Miller v. State

After the state had closed its evidence, the defendant declined to offer testimony, and requested the court to give in his behalf the general affirmative charge, stating the grounds therefor to the court to wit, that the state had failed to prove the time laid in the indictment. The court refused this charge, and, over the objection and exception of defendant, permitted the state to recall a witness and to supply this proof. This was in the discretion of the court. Code 1923, § 9490.

The principal state's witness having testified that he captured a two-gallon jug of whisky at the still where defendant was working, it was permissible for him to testify that he took this whisky to the sheriff's office and turned it over to the chief deputy, and for the deputy to testify as to its disposal, in corroboration of the testimony of the principal witness. The fact that the principal state's witness did not "swear out" a warrant for defendant immediately after he had seen defendant at the still is irrelevant and immaterial. Such fact could not affect the credibility of the testimony of such witness.

The fact, if it be a fact, that during the term of the court at which defendant was being tried, one of the state's witnesses in this case said to a man examined by the defendant, "Old boy, I think you are going to stand by me, and not flicker on me like your daddy did," was not relevant as testimony. It was not shown that this remark related to this case; on the contrary, the witness said that the conversation in which the remark was used was "not about this case in particular."

The expression in the testimony of a character witness, who had testified to the general good character of another that "I think I would believe him on oath in a court of justice," is not error upon which to predicate a reversal. Such answer is not in the technical language usual in such examination, but is equivalent to saying that to the best of the witness' judgment he would believe the witness about whom he was then testifying.

Refused charges 1, 3, and 4, were affirmative charges, and, the evidence being in conflict, were properly refused. Lakey v. State, 20 Ala. App. 78, 101 So. 537.

Refused charges 5 and 6 were abstract, and refused charge 7 has no application in a case where the evidence is positive and not circumstantial.

Refused charge 8 is bad in that it is misleading.

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

Affirmed.

On Rehearing. Refused charge 2 was substantially covered in given charge 4. Moreover the proposition of law stated in this charge, while axiomatic, was used in the opinion in Moon's Case, 19 Ala. App. 176,95 So. 830, arguendo. When requested in a written charge, its refusal will not constitute reversible error, unless the court by its rulings has so instructed the jury as to render it necessary. Again the refusal of this charge 2, is without injury to the substantial rights of defendant in this case, as a reading of the entire record discloses that the defendant was given the same consideration in the court's rulings as if he had been on trial for any other crime.

The application is overruled.