Bohlman v. State

135 Ala. 45 | Ala. | 1902

TYSON, J.

We do not understand from the record that the solicitor was attempting, by the cross-examination of Avitness Bolilman, to establish that Cochran had in fact been indicted and in Awhat court he had been indicted for stealing. On the contrary, Ave think it quite clear that the inquiry Avas directed to ascertaining in what court he, the witness, had heard that Cochran was indicted. For the purpose of impeaching Cochran, who had testified in behalf of the State, Bohlman had testified on-direct examination that he knew his general reputation and that it was bad. On cross-examination, the prosecution had a right to have the jury know all that lie had heard derogatory to the character of Cochran upon which the witness predicated his opinion of bad character.

Nor did the court commit an error in sustaining the objection to the question propounded to the defendant, “In the. land dispute you were successful, weren’t you?” The merits of that controversy between Cochran, who was alleged to have been assaulted by defendant, and the defendant were immaterial.—Commander v. The State, 60 Ala. 1; Gray v. The State, 63 Ala. 66; 1 Mayfield’s Dig., 331, §§ 377 et seq.

Charge 5 refused to defendant is a substantial copy of charge 13 in Gilmore v. The State, 99 Ala. 154, which this court held should have been given. The court was influenced in so declaring by the principle announced in Ex parte Acree, 63 Ala. 234, which did not involve an instruction to a jury, but was simply a statement of the court arguendo in passing on the weight of the evidence in a habeas corpus proceeding. The court evidently overlooked the case of Shepperd v. The State, 94 Ala. 102, where a similar charge was condemned as an argument. And in a subsequent case (Dennis v. The State, 112 Ala. 65,) it is said of a charge very much like the one under consideration : “We do not approve of the use of the word ‘humane’ in an instruction to the jury, as the jury is apt to conclude that the case before them is one which calls for the application of the principle. It is very proper in an argument to justify a conclusion of law.” We think the cases of Shepperd, and Dennis are right and that of Gilmore wrong. So we are constrained to hold that the trial court committed no error in refusing the charge to the defendant.

Charges 6 and 7 requested by defendant have been so often condemned by this court, that no further comment is necessary.—1 Mayfield’s Dig., 174, § 206.

Charge 9 requested by defendant was the general affirmative charge and was, of course, properly refused.

Oharge 19 was also correctly refused. It assumed, tliat there was proof of the alibi. Whether the evidence tending to prove an alibi amounted to proof of the fact, was for the jury.

We have examined the several written charges given at the request of the State, and find no error in the giving of either of them.—McKleroy v. The State, 77 Ala. 95.

Affirmed.