Coates v. State, 59 So. 323

59 So. 323 | Ala. Ct. App. | 1912

PELHAM, J. —

The defendant was convicted of a violation of the prohibition laws.

The rulings on the motion to exclude certain portions of the testimony of -the witness Morgan Clark are not presented in a way to raise the question of the correctness of the court’s action in overruling the motion. As set out in the bill of exceptions, the motion is shown to have been made after the witness testified to these matters in response to questions, and no objection is shown to the questions. In fact, the witness is shown to have testified to the matters without objection. The defendant cannot put the court in error by moving to exclude answers that are responsive to the questions asked, when no objection was offered to the question. Otherwise it would be to allow the defendant to speculate on the ansrver of the witness and accept it, if satisfactory, and, if it proved detrimental or undesirable, to reject it by moving to exclude. This the defendant cannot do.— Powell v. State, Infra, 59 South. 530; W. U. Telegraph Co. v. Bowman, 141 Ala. 175, 37 South. 493; Dowling v. State, 151 Ala. 131, 44 South. 403; B. R. L. & P. Co. v. Taylor, 152 Ala. 105, 44 South. 580; Lewis v. State, 121 Ala. 1, 25 South. 1017; L. & H. R. R. Co. v. Bogue, 58 South. 392.

The witness Morgan Clark having been alloAved to testify without objection: “I have frequently seen a barrel of whisky at Eufanla shipped to the defendant at Eufaula. The last time I saw a barrel at the depot in Eufaula was on last Thursday. It was hauled out last Friday. ITis son hauled it out. It was marked, ‘Glass, 12% gallons’ ” — it cannot be said to be prejudicial to allow the witness, against the objection of the defendant, to further testify that he had seen other shipments to the defendant, some in barrels and some in drums, and that he “saw a shipment about a week before the one I [he] have just testified about.” The latter statement was but a continuation of what the Avitness had testified about, and the connection of the defendant Avith the shipments is sufficiently shoAvn to authorize an admission of the testimony.

The fact that the Avitness Clark took a “pretty active stand” on the whisky question, and prosecuted people for violations of the prohibition laAVS, was too general, for the purpose of showing a bias against the defendant, to authorize a reversal of the case because of (lie court’s refusal to permit the question to be asked upon cross-examination. The Avitness to Avhom the question was put was not the state’s witness, Avho had testified to the illegal sale by the defendant. Neither an affirmative nor a negative answer Avould have a tendency to show a bias against this defendant. The Avitness’ general activity in the enforcement of the law, if proven, would not authorize a conclusion of bias against the defendant.

The defendant having elicited from his Avitness by general questions his knowledge of the character of the state’s Avitness Crews for truth and veracity, and also the general character of Crews, it was not permissible, in seeking to impeach the character of the Avitness, to go into the details of his character and prove particular acts, or his “manner and Avay of doing,” or that he Avas a “wishy-washy” hoy, and the like. Particular acts of conduct or specific constituents of character cannot he shown in proving character on direct examination.— McCutchen v. Loggins, 109 Ala. 457, 19 South. 810; McQueen v. State, 108 Ala. 54, 18 South. 843; Hussey v. State, 87 Ala. 121, 6 South. 420; Davenport v. State, 85 Ala. 336, 5 South. 152; Jachson v. State, 77 Ala. 18; Jones v. State, 76 Ala. 9.

The evidence was in conflict on the matters the defendant requested the two charges upon, and they were properly refused.

In Hendley v. State, 3 Ala. App. 215, 58 South. 96, this court was not construing the present prohibition laws. The prosecution in that case was brought under the laws in force prior to the present prohibition statutes. In this case the testimony that whisky had frequently been seen at the depot, shipped to the defendant, was admittd without objection; and this was a circumstance that could be looked to in determining the question of the defendant’s having violated the prohibition laws under the charge preferred against him, and for which he was being tried. ' In Hendley’s Case, the whisky was not shown to have been shipped in the name of the defendant; nor was the defendant shown to have been connected in any way with the whisky about which the witness testified.

The record shows no .reversible error, and the case will be affirmed.

Affirmed.