Gibson v. State

62 So. 895 | Ala. Ct. App. | 1913

WALKER, P. J.

— One Dave Rudder, a Avitness for the defendant, testified to some of the details of. the af- • fray between the defendant and the deceased in which the latter was killed. On his cross-examination after he had failed to answer questions calling for a description of the respective positions of the defendant and the deceased Avhile the fight Avas in progress, in answer to a question asking if he did not, on the preliminary trial of the defendant, get doAvn on the floor and shoAv in Avhat position the deceased Avas, he stated that he tried to. show.it,.,but. failed. After the witness bad declined tp undertake to describe or show, to the jury what the . deceasedts position .was, tbe solicitor offered to put him-, self in a position on the floor with reference to another person, and to ask the witness if that was not the position he said- on the preliminary hearing that the deceased end the defendant were in. The defendant excepted: to; the action of -the court in overruling his objection tothis -demonstration being permitted to-be. made, :IWq- are not of opinion, that the court, was in ;error.;in this ruling. . The demonstration, and the question asked in connection with, it, amounted to nothing more than a description of the position, and an inquiry :to the' witness if that was not-the position which he,had previously stated was the'one occupied by the deceased:at;the time inquired'about.-' The witness hav-' ing declined to give either a. description or a demonstration: of the position of the1 defendant with reference to the deceased-when called upon to do so, the prosecution was-entitled to elicit his admission or denial of the fact that on-a. previous .occasion'he had shown what was the position inquired.about and to ask him if a position ' which, áncither assumed in his presence was not the position shown by him on such previous occasion. The answer of the witness to the question, or his failure to answer it, "might be well worthy of consideration on the inquiry ás th the weight which ' should be accorded to his testimdny;, as indicating his frankness or lack of frahkness/'or'kis bias or freedom from bias in testifying in reference to the occurrence which was under investigation. "The mode of inquiry was not an improper one on a cross-examination seeking to test the accuracy of the witness and the fairness of his testimony.

- In the argument of the counsel for the appellant much stress is laid upon the alleged impropriety in the action of the court in permitting a remark, made by one of the persons who engaged in the demonstration in connection with which the Avitness was interrogated, to remain before the jury as evidence. Of that incident it is enough to say that the bill of exceptions does not show that the court, made any ruling in reference to it, or that an exception to such ruling Avas reserved. No action of the court in reference to that remark is presented for review.

The court was in error in refusing to give the written charge which is designated “2” in the margin of the record. There was an aspect of. th.e evidence in the case to which it was applicable. That it should have been given is shown by the rulings made in Bluett v. State, 151 Ala. 41, 44 South. 84, and Bluitt v. State, 161 Ala 14, 49 South. 854.

Other questions presented need not be passed on, as they áre such that they may not arise in another trial.

Reversed and remanded.