Storey v. State, 72 So. 267

Storey v. State

72 So. 267 | Ala. Ct. App. | 1916

BROWN, J.

(1) It is well settled that a witness cannot be impeached by proof of a specific actual delinquency not connected with the facts in issue, unless it constitutes a crime involving moral turpitude of which the witness has been convicted, or bears such relation to the transaction under investigation as to show bias or prejudice on the part of the‘witness.—Nelson v. State, 11 Ala. App. 221, 65 South. 844. The objection to the question asked the witness Esther Campbell, eliciting the fact as to whether or not she was the mother of a bastard child at the time the alleged perjured testimony was given by defendant, was properly sustained.

*129(2) The witness Newton swore that he could not say that one of the persons he saw at the well was Esther Campbell. Granting this as true, it was clearly immaterial who the person was. The witness Linnie Bell Gibson testified that she saw the defendant and Esther Campbell in a compromising position in the yard near the well, and called her sister and the witness Blanche Newton to go and see the defendant and Esther while in this position, but they would not go. The statement of the witness to the effect that she called her sister and Miss Newton to go see those parties was not disputed, and it was not permissible for the purpose of bolstering up her testimony to prove this collateral fact by the witness Newton, and the court properly sustained the objection of the solicitor to the question to Miss Newton, eliciting the fact that Miss Gibson called to her and that she refused to go.—Newsom v. State, 107 Ala. 137, 18 South. 206.

(3) Although the records show that objections were sustained to the several questions eliciting testimony from defendant as to the circumstances under which he made the statement to Roland that he, defendant, had never had sexual intercourse with Esther Campbell, yet the record shows that the questions were fully answered and the answers were not excluded. Therefore, if it was error to sustain the objections, it was without injury.

(4) The evidence shows without dispute that defendant testified as a witness on the trial of Sterling Taylor, charged with the seduction of Esther Campbell, that he had sexual intercourse with the said Esther Campbell at John Grizzle’s house; that the act of sexual intercourse occurred during the progress of a party at said Grizzle’s house, “out in the back yard, back of the house, just over the fence.” The witness Esther Campbell testified that no such act of sexual intercourse took place, and, as corroborating her testimony, the state offered evidence tending to show that Esther did not leave the room where the party was in progress from the time she arrived at the house until she left with her brother and sister. If this was true, and that was for the jury, the defendant had no opportunity to have sexual intercourse with Esther out in the back yard, behind the house, just over the fence, and the tendency of this evidence is to show that the testimony of the defendant given in the seduction trial was false. It tended to prove the corpus delicti, and was sufficient ta *130justify .submission of the case to the jury.—Peterson v. State, 74 Ala. 34; Powell v. State, 5 Ala. App. 155, 59 South. 328; McDaniel v. State, 13 Ala. App. 318, 69 South. 352.

(5) The bill of exceptions does not purport to set out all the evidence, and we are not authorized to review the refusal of the affirmative charge.—Clardy v. Walker, 132 Ala. 264, 31 South. 78; Sanders v. Steen, 128 Ala. 633, 29 South. 586; Sou. Ry. Co. v. Herron, 12 Ala. App. 415, 68 South. 551; South. Ry. Co. v. Kendall, Infra, 69 South. 328.

(6) The other special charge refused to defendant was not a correct statement of the law, and was properly refused.—Stone v. State, 11 Ala. App. 141, 65 South. 693.

There is no error in the record, and the judgment is affirmed.

Affirmed.