Hunter v. State, 101 So. 100

Hunter v. State

101 So. 100 | Ala. Ct. App. | 1924

The prosecution was commenced by affidavit charging that the defendant willfully interrupted or disturbed an assemblage of people met for religious worship by noise, profane discourse, or rude or indecent behavior at or near the place of worship. There was a conviction in the county court, and the defendant appealed to the circuit court. The state's solicitor filed a complaint in the circuit court, upon which the defendant was tried and convicted.

The original affidavit and the amended complaint followed the language prescribed by the Code, and were not subject to the defendant's motion to strike or the demurrer. Criminal Code 1907, p. 667, form 45. Campbell v. State, 4 Ala. App. 104, 58 So. 125; 1 Mayf. Dig. 431, § 185.

The defendant objected to the following question propounded to a state's witness, "State whether he [the defendant] was talking loud or low." The court did not err in overruling the objection and in permitting the witness to testify that he was "talking loud."

"The general rule is that witnesses must testify to facts, and are not permitted to express mere matters of opinion. The rule has its boundaries and exceptions, which are as well defined as the rule itself. Where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind; or, if from the nature of a particular fact better evidence is not obtainable, the opinion of a witness, derived from observation is admissible." Mayberry v. State, 107 Ala. 64, 18 So. 219; Hardeman v. State, 14 Ala. App. 35, 70 So. 979.

This court held, in Fowler v. State, 8 Ala. App. 168, 63 So. 40, that it was proper to permit a witness to testify that a report made by a firearm sounded like a rifle shot.

It was competent for the state to introduce in evidence the conduct and declarations of the defendant at different times covering the period occupied in the religious worship — in the instant case, during the preaching — such evidence tending to show willfulness on the part of the defendant in doing an act which disturbed the assemblage. Adair v. State, 134 Ala. 183,32 So. 326; Price v. State, 107 Ala. 161, 18 So. 130.

The testimony that members of the congregation turned their heads away from the preacher in the direction of the defendant while he was talking during the preaching was revelant as tending to show that the loud talking of the defendant disturbed them.

The court erred in sustaining the objection of the state to the following question, propounded by defendant's counsel to Ben Campbell, after the witness had testified that he had known Alice Tingle, a witness for the state, all of her life: "Do you know her general reputation from what the people say in the community in which she lives?" The court instructed counsel for defendant to "limit it to her general reputation for truth and veracity."

A witness may be impeached by evidence of his general bad character in the community in which he lives and the inquiry is not limited to his reputation for truth and veracity. Johnson v. State, 203 Ala. 30, 81 So. 820; Brown v. Moon, 196 Ala. 391,72 So. 29; McQuire v. State, 2 Ala. App. 218, 57 So. 57; Byers v. State, 105 Ala. 31;¹ Yarborough v. State, 105 Ala. 43,16 So. 758. The inquiry may be extended to his general character or reputation for truth and veracity in the neighborhood in which he lived, and whether, from the knowledge of such character at the time of the trial, the impeaching witness would believe the witness sought to be impeached on oath. *154 Davenport v. State, 85 Ala. 336, 5 So. 152; Johnson v. State, supra.

The following witnesses, J.C. Skinner, Riley Humbree, Mrs. George Lane, Mrs. Adeline McCullor, testified they knew the general character of Alice Tingle, and that they would not believe her on oath. The state offered no testimony to sustain her character either generally or as to truth and veracity. She stood impeached by these witnesses without any effort on the part of the state to sustain her. In view of the foregoing, we hold that the error above shown was without injury to the substantial rights of the defendant.

Charge 2, requested by the defendant was properly refused. There was a conflict in the evidence, and there was ample evidence to justify the verdict of guilty.

Charge 3 was faulty as invading the province of the jury. If the jury believed from the evidence beyond a reasonable doubt that the defendant willfully disturbed an assemblage of people met for religious worship by running his mule in a gallop up to the place of worship, the jury was authorized to convict.

Charge 4 reads as follows:

"After considering all the evidence in this cause, if there is a probability of defendant's guilt (italics ours) you must find the defendant not guilty."

The defendant's counsel probably intended to write "innocence" where "guilt" appears in the charge, but we must take it as we find it in the record. Certainly a probability of defendant's guilt would not authorize an acquittal.

We find no error in the record. The judgment of the circuit court is affirmed.

Affirmed.

¹ 16 So. 716.