64 So. 161 | Ala. Ct. App. | 1914
The defendant’s conviction of a misdemeanor in the recorder’s court of the city of Montgomery was not pleadable as a defense to this indictment charging a felony, and the demurrer of the state interposed to the defendant’s plea, seeking to set up such a defense, 'was properly sustained.' — Code, § 1221; Harris v. State, 2 Ala. App. 116, 56 South. 55.
There Avas no error committed by the court in sustaining the state’s objection to the question asked the witness S. Franco by defendant’s counsel on cross-examination, “That is what your brother, came up to testify to?” The matter called for Avould be based on pure hearsay or a conclusion reached on the uncommunicated motives or intentions of another. A witness cannot testify to the intentions or cognition of another person. —Bailey v. State, 107 Ala. 151, 18 South. 234; Layton v. Campbell, 155 Ala. 220, 46 South. 775, 130 Am. St. Rep. 17.
If it Avas error to sustain an objection to the question asking this witness hoAV much he would “say” the defendant weighed, it was Avithout prejudice to the defendant and harmless, for the defendant Avas permitted to testify what he weighed, and this testimony was without contradiction in the evidence.
It requires no discussion to show that the court properly sustained an objection to the question, “Don’t you do all the swearing?” asked the state’s. witness A.
The state having confessed defendant’s plea of former jeopardy as to all misdemeanor charges embraced in the indictment, and placed itself in the outset of the trial squarely on asking for a conviction of the felony, conceding that the defendant was entitled to an acquittal if not shown to be guilty of the felony charge, there could be no prejudicial error based on the rulings of the court with respect to refusing to define the constituent elements of the lesser offenses embraced in the general terms of the indictment, either in refusing to charge orally, or at the written request of the defendant thereon, as the issues involved in the trial did not include these matters. The court ex mero motu charged the jury that the defendant’s pleas of former jeopardy had been confessed as to all other offenses embraced in the indictment except the felony charge, and that he could only be convicted on that charge.
Refused charges Nos. 1 and 2 are the general charge, and properly refused.
Charge No. 3, in failing to set out the elements constituting self-defense, submits a question of law to the jury.
The plea referred to in charge á is evidently the special plea of former jeopardy, and it will be seen from what we have said that the court was not in error in refusing the charge.
No reversible error is presented, and the judgment of the trial court will be affirmed.
Affirmed.