Stokes v. State

69 So. 303 | Ala. Ct. App. | 1915

BROWN, J.

(1) The book to which Martin and other witnesses for the state were allowed to refer for the purpose of refreshing their recollection was the permanent record kept by the express company in the usual course of its business, and on which was recorded the character of the goods embraced in the shipment, the name of the consignee, the weight of the parcel and the date of delivery, and the name of the person to whom delivery was made. This record was made in part from the waybills accompanying the shipment. The evidence showed that when a shipment was delivered to' the consignee the employee of the express office who made the delivery indicated that he made the delivery by a certain letter, for instance, the witness Martin used the letter “B,” and it was usual for the consignee to sign his own name, but in some instances the employee of the express company signed the name of the consignee.

The court, over a general objection of the defendant, in which no ground was specified, allowed the witnesses to refer to the respective memoranda made by them to refresh their recollection as to the delivery of liquor to the defendant, and after reference to the memoranda the evidence shows that the recollection of the witness was so refreshed that he could testify to the delivery, the date of the delivery, aud the goods delivered. This ruling of the court Vas well within the rule.—B. R., L. & P. Co. v. Seaborn, 168 Ala. 658, 58 South. 241; Davie v. Roland, 3 Ala. App. 567, 57 South. 1034; Hitt Lumber Co. v. McCormack, infra, 68 South. 696. The book used by the witnesses was not offered in evidence, and the question of its admissibility is not presented in this case.

(2) The testimony of the witness Martin was not to the effect that all the entries on the book were correct, but that by reference to the book he was enabled to testify that he delivered to the defendant certain goods, and identified the defendant’s signature on the book. The purpose of the testimony was not to prove the correctness of the entries in the book so as to1 make it admissible as evidence, but the entries on the book made by the witness or in his presence by the defendant were referred to to refresh the recollection of the witness. This differentiates this case from Young v. State, 9 Ala. App. 55, 64 South. 171, and cases there cited, and brings it within the rule laid down in B. R., L. & P. Co. v. Seaborn, supra.

(3, 4) If it was error for the court not to rule on the motion of the defendant to exclude the testimony of Martin with reference to what certain memoranda on the book made by other persons indicated, as to delive'ries of goods to the defendant of which he had no1 personal knowledge, all injury was averted by the subsequent action of the court in suspending the trial and allowing the state to produce the witness who made these other deliveries, and who testified fully as to such deliveries, and the action of the court in suspending the trial for this purpose was one of discretion not subject to review, except for gross abuse of discretion, and such gross abuse is not here shown.

The rulings of the court as to the testimony given by the witness Wilson are sustained by the rules heretofore stated.

(5) The rulings of the court can be sustained on another ground. It has been repeatedly held that a general objection to testimony that is not patently immaterial is unavailing as a basis for error on appeal, and all of the objections made by th'e defendant were general objections.

(6) The court properly refused to allow the stenographic report of the testimony of the witness Martin to be read to the jury. No predicate was laid for his impeachment, and the testimony of the witness had been given in the presence and hearing of the jury, and it was for them to determine from that evidence what witness had sworn. To lay down a rule that a party has the right to have the testimony of every witness given during the trial read to the jury from the stenographic report would entail intolerable delay of the trial.

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

Affirmed.