65 So. 702 | Ala. Ct. App. | 1914
Lead Opinion
The first witness for the state Avas Lewis Stanford, Avho testified as to the purchase by him of some whisky from the defendant. On the cross-examination of this witness he stated that he bought the whisky from the defendant under instructions from one McCord, who subsequently was a witness against the defendant and stated as to himself that he was offi
The court was not in error in sustaining the objection of the solicitor to the question asked the state’s witness Molton on his cross-examination, “You have been on the chain gang, haven’t you?” An obvious purpose of the question was to elicit an admission by the witness of a fact from which his conviction of a criminal offense might be inferred. The conviction, touching which a witness may be examined is one of a crime that is infamous. — Code, §§ 4008, 4009; Wlliams v. State, 144 14, 40 South. 408. The question objected to was too genera], as from the witness’ affirmative answer to it it might have been inferred that he had been convicted
Bach of the three counts of the indictment charged the defendant with selling prohibited liquor. In a trial on such an indictment the defendant is not entitled to have the state limited to evidence as to one such sale.— Shivers v. State, 7 Ala. App. 110, 61 South. 467; Loudermilk v. State, 4 Ala. App. 167, 58 South. 180.
The bill of exceptions shows that, after the jurors had retired to consider their verdict and upon their return to the courtroom before a verdict had been agreed upon, the presiding judge had some communication with them in reference to the case while the defendant and his counsel were not present. As the judgment appealed from must be reversed because of the error above pointed out, it is not necessary to determine whether or not this incident has properly been presented for review, or to say more of it than that a trial court should refrain from having any communication with the jury in reference to a case on trial Avithout affording to the parties and their counsel an opportunity to be present when this occurs. — Morris v. State, 146 Ala. 66, 102, 41 South. 274; Feibelman v. Manchester Fire Assurance Co., 108 Ala. 180, 203, 19 South. 540.
Reversed and remanded.
Rehearing
ON APPLICATION POR REHEARING.
In the brief filed in support of the state’s application for a rehearing in this case, it is suggested that there was an inaccuracy in the statement in the opinion to the effect that the communication of the presiding judge
“A trial court should refrain from having any communication with the jury in reference to a case on trial without affording to a party to it an opportunity to have his counsel present when this occurs.”
A reconsideration of the rulings heretofore made has not led the court to the conclusion that it fell into error in the disposition which was made of the case.
Application for rehearing overruled.