58 So. 60 | Ala. Ct. App. | 1911
Lead Opinion
The defendant was tried on an indictment charging an assault with a weapon, the jury returned a verdict of guilty, and placed the fine at $100, and the court imposed an additional punishment of 30 days imprisonment in the county jail.
The exceptions reserved on the trial to the court’s ruling on the evidence are without merit. The question propounded to the witness Davis manifestly called for a hearsay, self-serving declaration of the defendant, and the court properly sustained an objection to the question, and refused to allow a statement made before the jury as to what defendant expected the answer to be. At most, the matter called for could be no more than an exculpatory declaration of the defendant tnat was no part of the res gestae.—Willimns v. State, 105 Ala. 96, 17 South. 86; Fergeson v. State, 134 Ala. 63, 70, 32 South. 760, 92 Am. St. Rep. 17.
The defendant had been examined as a witness in his own behalf, and proof of his general character was admissible. —Mitchell v. State, 148 Ala. 618, 42 South. 1014; Ross v. State, 139 Ala. 144, 36 South. 718; Fields v. State, 121 Ala. 16, 25 South. 726; Yarbrough v. State, 105 Ala. 43, 16 South. 758; Jones v. Slate, 96
It was not improper to allow the witness McKinnon to testify to the character of the defendant formed, or ■based on an estimate of how he was regarded or the esteem in which he was held by others who knew him. The witness could form an estimate by what he heard others say, without having a personal acquaintance, and that his- knowledge of the reputation of defendant was limited to what others had communicated by some expression (“what they said”) does not make the question objectionable. Reputation is the estimate in which others hold one, and this can only be made known or communicated by some expression — generally “wnat they say.” There was sufficient evidence to authorize a conviction, and the general charge requested in behalf of defendant was properly refused.
The imposition of an additional punishment by the court of 30 days imprisonment in the county jail was without error. —Code 1907, §§ 6306, 7627; Reid v. State, 53 Ala. 402, 25 Am. Rep. 627; McPherson v. State, 54 Ala. 221; Bibb v. State, 84 Ala. 13, 4 South. 275; Taylor v. State, 114 Ala. 20, 21 South. 947; Martin v. State, 125 Ala. 64, 28 South. 92.
No error being shown by the record, the case will be affirmed.
Affirmed.
Rehearing
On Application for Rehearing.
In his application for a rehearing, appellant’s counsel directs the attention of the court to the question asked the defendant’s witness Davis, to which the court sustained an objection, seeking to prove by the witness what the defendant said in the presence of the witness and his (defendant’s) brother, when the brother, Layno
Conceding that the declaration of the accused was admissible as explanatory of the act of his leaving and going to the place of the difficulty, and formed a part of the res gestae of that matter, the defendant’s brother to whom the statement was made in the presence of the witness David had previously been examined as a witness for the defendant, and had testified without objection to having told the defendant what Hardeman had said and what the defendant said upon being informed of Hardeman’s request, and how he (defendant) appeared not to be mad when he went off in the direction of Hardeman’s, where the difficulty occurred. This evidence was before the jury without conflict, and Davis’ testimony could only have been cumulative of the undisputed and uncontradicted testimony of defendant’s witness Layno McGuire. “Waiving any further consideration of the supposed error in the exclusion of this
The defendant discusses an exception reserved to the oral charge of the court in his application, but no exception to the oral charge is shown by the record, nor is any portion of the oral charge set out.
Application for rehearing denied.
