Wray v. State, 57 So. 144

57 So. 144 | Ala. Ct. App. | 1911

PELHAM, J.

The amended affidavit charged offenses of equal degree subject to the same punishment, and was not subject to the demurrers interposed. Such offenses may be charged in the alternative.—Code 1907, §§ 6303, 7151; Bonner v. The State, 97 Ala. 47; McClellan v. State, 118 Ala. 122; Sims v. State, 135 Ala. 61.

Under the charge preferred the defendant could be convicted of assault-and battery.—Smith v. State, 123 Ala. 64.

It was competent to show what was -done and said by those present during the commission of the assault, both as directly going to- the character of the assault and as part of the res- gestae.—Smith v. State, 123 Ala. 64.

The objections as to the questions asked the witness Fulton about a discussion and what was said at another time than on the occasion of the assault, and subsequent to the assault, were properly sustained. The question asked this witness, “Did not Mr. Barber have a hatchet and expect outsiders?” called for testimony by the witness of the mental status of.another person, and an objection to it was properly sustained. What the witness told an officer or others after the assault was not admissible.

It was not proper to allow the prosecuting witness to testify, on cross-examination, to his uncommunicated purpose or secret intent in having the hatchet, nor to elicit from him what he swore on the subject in a former trial. The court committed no error in refusing to allow the defendant to extend the cross-examination of the prosecuting witness to inquiries about immaterial matters, or in refusing to allow questions which had been fully answered.—Moulton v. State, 88 Ala. 116; Martin v. State, 104 Ala. 78; Braham v. State, 143 Ala. 28; Newman v. State, 160 Ala. 102.

It was immaterial that some case against the defendant (the record does not disclose that it had any connection with the particular offense for which the defendant was on trial) had been nolle prossed in the police court, and the court correctly refused to allow defendant, when being examined as a witness, to testify to the fact, if it was a fact.

Whether or not the witness Fulton had a pistol on his person the day before the trial while in court was entirely immaterial and irrelevant to the issues.

The portion of the court’s oral charge on the question of alibi to which exception was reserved is free from error.—Jacks v. State, 117 Ala. 155.

No error being shown by the record, the case will be affirmed.

Affirmed.