Jackson v. State

137 Ala. 80 | Ala. | 1902

DOWDELL, -T.

The indictment, in this case follows the form prescribed in the Code. — Crim. Code, form No. 3, p. 264.

The court, properly overruled the defendant’s demurrer. In Meyers v. State, 84 Ala. 11, it Avas held that the Avords “female” and “AAroman” were identical in meaning, and an indictment, using either was sufficient.

The Avitness Coy Thompson Avas asked by the solicitor, “Did you hear the defendant use any abusive or insulting'epithet to Will Davis?” This question was objected to by the defendant, and the objection ivas overruled by the court, b.r which ruling the. defendant excepted. The. witness then answered, “Yes,” which answer the defendant, moved to exclude, and the motion being overruled, the defendant excerpted. In these rulings the court, was in error1. As to whether the defendant, used abusive1 or insulting language, or “epithet” was a fact in issue, the issue the jury was called to try and decide. The question called for the opinion or conclusion of the witness as to whether the language used bv tin1, 'defendant to Will Davis, was insulting or abusive1, and the answer to the question was but. the expression of that opinion. The witness had already testified that he did not remember the language used, non constat, if he had remembered and repeated the language, it might have been shown, that what in. the opinion of the witness, was án. “abusive or insulting epithet,” was not in fact such.

The case of Morris v. State, 84 Ala. 457, is similar in principle. In that case the defendant was indicted for disturbing religious worship, and it was decided by this court, that it was error to permit, the witness to stab? against the objection of tin; defendant, that the congregation was disturbed by the defendant, holding that the witness should have stated what was said or done1 by the defendant, and leaving it to the jury to determini? whether or not the1 congregation was disturbed by what the, defendant did or said. For the error pointed out: the judgment of the court, must be reversed, and the cause remanded.

Reversed and remanded.