Nickerson v. State, 60 So. 446

Nickerson v. State

60 So. 446 | Ala. Ct. App. | 1912

THOMAS, J.

There Avas no injury in overruling defendant’s motion to exclude the testimony of state’s witness J. H. Linch, on the ground that his testimony fixed the commission of the offense at a different place from that fixed by the state’s witness Washburn, previously introduced. The subsequent testimony showed beyond cavil that each Avitness was describing in a different way the same place.

There Avas no error in refusing to permit the defendant’s witness Graham to state why he, the Avitness, Avent down to the still the morning defendant Avas arrested, or how he, the witness, came to be there. — Weaver v. State, 1 Ala. App. 49, 55 South. 956. We cannot see hoAV it is or could possibly be material to any issue in the case. Besides, even if there Avas error in not per*29mitting the witness to answer at that time, it was certainly abundantly cured later on, for subsequently he testified on the subject fully, without objection from the state, explaining how and why he came to be at the still that morning.

The reasons why Boon, a third party, could not go to the still, were clearly immaterial, and properly not allowed to be proved by defendant.

It was likewise not relevant to show where the witness Graham Avas the night before the offense, or whether he, the Avitness, was at the still or had been there the night before. The witness was not on trial, and was not shOAvn to have been with defendant the night before. Besides, if there was error in not permitting the testimony, the record affirmatively shows there was no injury, because the witness did latér on in his testimony, and Avithout objection, state Avhere he was the night before and that he was not at the still.

The witness Graham, introduced and examined by the defendant, was on cross-examination and against objection asked by the solicitor if there was not a similar case against him, the witness, then pending for operating the same still and at the same time and place the defendant Avas charged Avith operating it. The witness Avas required, over objection and exception, to an-SAver the question, Avhich he did affirmatively. This was not error, as the fact elicited tended to shoAv bias or interest in defendant’s case, affecting the credibility of the witness.' — Wilkerson v. State, 140 Ala. 167, 37 South. 265.

The defendant’s Avitness Jim Boon testified on cross-examination Avithout objection that he did not testify on the trial of the case before the justice of the peace at all, but that at the time of that trial defendant knew Avitness would swear what he had SAVorn on this trial. *30Then counsel for the state asked: “And yet you did not testify this [referring to what witness had testified to on this trial] at that time?” To this question counsel for defense objected, which was overruled. The question amounted to no more than an affirmation by the solicitor in an interrogative form of a fact that the witness had already stated without objection. If there was any merit in the objection, it came too late, for the evidence was already in before the question was asked.

Besides, no grounds of objection were specified, if any meritorious ones existed, and the lower court properly overruled in this case the objection.- — Gunter v. State, 111 Ala. 28, 20 South. 632, 56 Am. St. Rep. 17; Washington v. State, 106 Ala. 61, 17 South. 546.

There was certainly no error in not permitting the defendant’s witness Jim Boon to state whether or not the witness’ brother, a third party,-and not defendant, “requested witness to go anyAvhere that morning.” It sought to elicit matters that were entirely immaterial and irrelevant to any issue in the case, and Avere self-serving. — Ferguson v. State, 134 Ala. 70, 32 South. 760, 92 Am. St. Rep. 17.

We find no error in the record, and the case is affirmed.

Affirmed.