98 Ala. 45 | Ala. | 1893
The defendant Lowery was convicted of murder in the second degree. The questions for consideration arise upon the admission and exclusion of evidence, and the refusal of the Court to grant a new trial.
One of the witnesses examined for the prosecution, on cross examination, for the purpose of impeaching her testimony, was asked, if she had not been guilty of certain specified acts of adultery. An objection to the question was sustained. It may be that on cross ' examination, a witness who has testified to the good character of a defendant, as evidence to be considered in connection with other evidence affecting the question of guilt or innocence, for the purpose of testing the extent of the witness’ information or the soundness and tona fides of his opinion, may be asked on cross examination, if he had not heard that the defendant had been accused of certain named offenses of a character similar to the one with which the ■ defendant was charged. To illustrate, a man charged with murder or' robbery. A witness testifies to the defendant’s good character for peace and quietude. On cross examination, the witness may be asked, if he had not heard that the defendant had killed a man, or in the other case, that the defendant had been accused of a certain robbery. This is permissible only on cross examination, not for the purpose of proving or disproving the defendant’s good character, but as affecting the Bias, extent of the information and credibility to be given to the testimony of the witness.
Ingram v. The State, 67 Ala. 72; Moore v. The State, 68 Ala. 362; 1 Best. on Ev. § 261; Stoudenmire v. Williamson, 29 Ala. 564; Moulton v. The State, 88 Ala. 116; Hussey v. The State, 87 Ala. 183.
It is not permissible to prove good or bad character, either of a party on trial, or of a witness to fortify or impeach his testimony, by proving particular acts. This principle is clearly settled. Walker v. The State, 91 Ala. 79; Moore v. State, 68 Ala., supra, Morgan v. State, 88 Ala. 223; Moulton v. State, Ib. 116; Nugent v. State, 19 Ala. 540; Hussey v. The State, 87 Ala. 133. There was no error in sustaining the objection to the questions.
The court permitted proof of the evidence given by a witness on the preliminary trial of the defendant, but who was absent at the time of the present trial. We think the predicate for the introduction of this evidence, brought the case fairly within the rule which authorizes the introduction of
The granting or refusal of an application for a continuance is left to the sound discretion of the trial court, and its action in this respect is not revisable here. In fact, there is no evidence that defendant made known to the court he was not ready for trial, or that he applied for a continuance.
The motion for a new trial, based upon newly discovered evidence, was not sustained by sufficient proof. No showing as to diligence is made, and it is not clear that the facts offered to be proven by -the witness Haywood could be successfully offered in evidence, on another trial — certainly not as original evidence.
The one ground upon which the motion for a new trial is predicated, which probably is meritorious, is that the court “asked defendant’s counsel, in open court, in the presence of the jury, and while charging the jury, if he insisted on the doctrine of self-defense.” We have examined the bill of exceptions carefully, and find no proof of this statement by the court, or any exception to any statement or charge of the court. We can not consider it.
There is no error in the record, and the case must be affirmed.