Stevens v. State, 60 So. 459

Stevens v. State

60 So. 459 | Ala. Ct. App. | 1912

WALKER, P. J.

Some of the rulings of the trial court which are criticised in the brief of the counsel for the appellant are so obviously unobjectionable or not prejudicial to the appellant that a discussion of them is not deemed necessary.

Dr. G. W. Gaillard, a witness for the defendant, testified as an expert in reference to. the effect upon a pregnant woman of a blow inflicted upon her with a buggy whip. In the course of his examination on this subject by the defendant’s counsel, he made the following statement : “In other words, she could not be up and attending to domestic duties afterwards, and the effect upon the woman would have to be greater than the evidence in this case has shown.” Thereupon, as stated by the bill of exceptions, the state moved to exclude the testimony about the result of the evidence. An exception was reserved to the granting of this motion. It is not made to appear that the court was in error in this ruling. For anything shown to the contrary by the bill of exceptions, it may have been justifiable from the fact, within the knowledge of the court, that the witness could have had no opportunity to learn what the evidence in the case was except from hearsay. Besides, to permit such an expression by a witness as to the effect of the *9evidence that had been adduced would amount to allowing him to give his opinion of the case on trial, to exercise a function which properly may be exercised by the jury alone. — Gunter v. State, 83 Ala. 96, 107, 3 South. 600; Page v. State, 61 Ala. 16.

Charge 3, requested by the defendant, was properly refused. — Shelton v. State, 144 Ala. 106, 113, 42 South. 30; Amos v. State, 123 Ala. 50, 26 South. 524.

The refusal to give charge 4, requested by the defendant, may be justified because of the tendency of its last paragraph to lead the jury to conclude that the verdict could properly be based upon a consideration of a part only of the evidence in the case, that offered by the prosecution. — Nicholson v. State, 117 Ala. 32, 23 South. 792; Welch v. State, 156 Ala. 112, 46 South. 856.

Affirmed.