The defendant was in dieted for grand larceny, was tried and convicted, and was sentenced to the penitentiary.
During the progress of his trial in the couyt below, the defendant reserved exceptions to some of the rulings of the court relating to the admission of certain evidence, and it is to a consideration of those rulings that this opinion is addressed.
1. The evidence on behalf of the state tended to show that, one Long, who lived at Anniston, and who was an employee of the Southern Railway Company, and whose duties required him to be awake at night, went, about 8:30 o’clock one morning, with the defendant into the back room of a bar; that they sat together.at a table
On cross-examination, the defendant asked the witness Long if he and th'e defendant did not play craps in the back room of the bar, and if the defendant did not win his money playing craps. The witness replied that he did not. The defendant then asked the witness, “It is against the rules of the railroad company for its employees to gamble, isnt’ it?” The defendant’s counsel then stated to the court that they expected to show by the witness that it is against the rules and regulations of the railroad company for its employees to drink, or to frequent saloons, or to gamble, or to play cards or dice, and that a penalty for a violation of this rule is a discharge of the employee. The court thereupon sustained the objection of the solicitor to the question and the defendant excepted. The witness Long had already testified that the money was stolen from him while in the back room of a barroom, and that he had been drinking there. If the rule inquired about existed, he had already subjected himself, under his testimony, to its penalties, and how his answer to the above question could have affected his credibility we are unable to see. Coun
2. The Southern Railway Company bad no pecuniary interest in, nor was it a party to, this prosecution. The defendant was not charged with the larceny of any of its property, or of any property over which it bad control, or which was on its premises when stolen. If it be a fact, as contended by counsel for defendant, that Rear-don was an employee of the Southern Railway Company, and in that capacity aided its attorneys in the trial of its causes, that fact, without more, would not, under the evidence in this case, have bad the slightest legal tendency to show that, because Reardon bad manifested interest in this case, the Southern Railway Company was in any way aiding in the prosecution of the defendant. The record contains no evidence tending to show that Reardon, if be took any interest in this case, was not
The case of Price v. State, 100 Ala. 144, 14 South. 409, 46 Am. St. Rep. 28, declares a sound rule of law, but its doctrine can only be invoked in cases where the facts justify the application of the doctrine which it announces.
3. The questions propounded to the witness Long, with reference to statements made by said witness to the brother of the defendant, called for evidence which could not, in any event, have been of benefit to the defendant. The fact that the witness was willing for the case to be settled by a fine, rather than by imprisonment in the penitentiary, indicated feelings of kindness, rather than .those of hostility, on the part of the witness to the defendant. Neither was the fact that the witness had a wife and children in Anniston relevant. The evidence for the state and for the defense shows that the witness did go to the bar, that he drank there, and lost his money, and the fact that he had a home to which he could have gone to sleep does not tend to show that he did not in fact go to sleep in the back room of the bar.
4. It is the unquestioned law of this state that no unfavorable inference can be drawn and no unfavorable argument to a jury made by counsel against a party to a cause because of the absence of the testimony of a witness in a cause, when that witness is accessible to both
The doctrine announced in Du Bose v. Conner, supra, and Etheridge v. State, 124 Ala. 106, 27 South. 320, applies only in cases where the right to introduce the evidence exists in both parties to the suit.
In the case of Bennett v. State of Georgia, 86 Ga. 461, 12 S. E. 806, 12 L. R. A. 449, 22 Am. St. Rep. 468, the solicitor urged that the defendant was a man of bad
5. The defendant asked the court, in writing, to give two charges to the jury. Both charges state that they are asked as replies to certain portions of the solicitor’s closing argument. It is not error for a court to refuse a charge having no purpose other than to respond to or offset arguments made before the jury by the prosecuting officer.—Barnes v. State, 134 Ala. 36, 32 South. 670; White v. State, 133 Ala. 122, 32 South. 139; Michell v. State, 129 Ala. 23, 30 South. 348; Ridgell v. State, Infra., 55 South. 327.
There was no error in the record, and the judgment of the court is affirmed.
Affirmed.