Pond v. State

55 Ala. 196 | Ala. | 1876

MANNING, J. —

The form of accusation for the offense with which defendant is charged in this case is plainly indicated in the Code; and, though the indictment contained in this record is negligent and ungrammatical, in language and construction, we cannot impute to it a different meaning from that conveyed in the form prescribed by law. It being-charged that the defendant had broken into and entered the store-house specified, the word “ where ” must be understood, in that connection, as equivalent to the statutory words “ in which.” There was not error in overruling the demurrer.

2. The objection to the statement by witness Davidson of-Ms conversation with defendant was properly overruled. Because the witness testified that he could not undertake to repeat all that was said by the accused, is not a sufficient reason for refusing to receive what he could remember. A witness wbo should deny recollection of what he knew was said, would be as much guilty of perjury, as if he willfully misstated what he professed to have heard defendant say. The jury can generally determine, by the answers upon cross-examination, and other evidence in the cause, as well as by what a witness may say on examination in chief, how much value ought to be attributed to his testimony. — Bob v. The State, 32 Ala. 360.

3. The circuit judge did not err in permitting a witness to be recalled, to prove what he had said about the venue of the offense charged. To prove the venue, he might allow a witness to come in after the examination had closed, though no such testimony had been given. The judge presides to see that justice be done to both parties; and in reference to such a particular as the venue, the mere place at which an offense is supposed to have been committed, he ought generally himself to see to it that it be proved when the evidence for the State is given in.

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