Boshell v. State

Alabama Court of Appeals

Boshell v. State

101 So. 356, 20 Ala. App. 259, 1924 Ala. App. LEXIS 267

CourtAlabama Court of Appeals

DecidedSeptember 2, 1924

Docket6 Div. 367.

StatusPublished

Cited by1 cases

This text of 101 So. 356 (Boshell v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boshell v. State, 101 So. 356, 20 Ala. App. 259, 1924 Ala. App. LEXIS 267 (Ala. Ct. App. 1924).

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Opinion

BRICKEN, P. J.

The lengthy oral charge of the court appears tioice in this transcript. This is not necessary, and to follow this custom entails useless labor and expense in the preparation of transcripts on appeal. The statute expressly provides that “the charge of the court shall appear in the transcript”; so, also, the charges given at the request of the plaintiff or the state; and (3) the charges given at request of the defendant; (4) the charges refused to appellant. Acts 1915, p. 815. Will Dill v. State, 19 Ala. App. 636, 99 South. 831.

Of course, such exceptions as may be reserved to the court’s oral charge must be incorporated in the bill of exceptions, the *260 bill of exceptions being the only method by which this character of exception can properly be presented to the appellate courts. But by the statute, supra, the oral charge, as a whole, the given and refused charges, need only appear in the record proper; and as to the special written charges requested, the said statute creates the presumption that each charge was separately requested, and that a separate exception was reserved as to the giving or refusal thereof.

Over the objection and exception of the defendant, the court permitted the state to impeach defendant’s witness J. J. Posey on a matter wholly immaterial to any of the issues involved upon the trial of this case. Whether or not this witness had on that same night heard some shots just before that down at the garage, or whether or not he had made such a statement to Mr. Pete McCleskey and Prank Burkett near the depot, could shed no light on the issues involved here. It is an elementary rule of evidence that a witness, to be impeached, such impeachment must be as to matters material on the trial of the case in which he gives testimony,' and not upon matters entirely foreign to any of the issues involved upon the trial then in progress. These rulings of the court were error to a reversal.

The court also erred in allowing the state, over the timely objection of defendant, to ask the defendant if he had been arrested by the marshal several months prior to the time of the present difficulty complained of, and also the following question, “I will ask you if he didn’t arrest you on January 13th, in your garage?” These matters were also’ foreign to the issues here involved, and the fact that this defendant had been arrested several months prior to the alleged commission of the offense here complained of should not have been allowed in evidence upon the trial of this case. It was prejudicial to the substantial rights of the defendant, and his objections to the questions should have been sustained.

The judgment of conviction appealed from is reversed, and the cause remanded.

Reversed and remanded.

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BRICKEN, P. J.

The lengthy oral charge of the court appears tioice in this transcript. This is not necessary, and to follow this custom entails useless labor and expense in the preparation of transcripts on appeal. The statute expressly provides that “the charge of the court shall appear in the transcript”; so, also, the charges given at the request of the plaintiff or the state; and (3) the charges given at request of the defendant; (4) the charges refused to appellant. Acts 1915, p. 815. Will Dill v. State, 19 Ala. App. 636, 99 South. 831.

Of course, such exceptions as may be reserved to the court’s oral charge must be incorporated in the bill of exceptions, the *260 bill of exceptions being the only method by which this character of exception can properly be presented to the appellate courts. But by the statute, supra, the oral charge, as a whole, the given and refused charges, need only appear in the record proper; and as to the special written charges requested, the said statute creates the presumption that each charge was separately requested, and that a separate exception was reserved as to the giving or refusal thereof.

Over the objection and exception of the defendant, the court permitted the state to impeach defendant’s witness J. J. Posey on a matter wholly immaterial to any of the issues involved upon the trial of this case. Whether or not this witness had on that same night heard some shots just before that down at the garage, or whether or not he had made such a statement to Mr. Pete McCleskey and Prank Burkett near the depot, could shed no light on the issues involved here. It is an elementary rule of evidence that a witness, to be impeached, such impeachment must be as to matters material on the trial of the case in which he gives testimony,' and not upon matters entirely foreign to any of the issues involved upon the trial then in progress. These rulings of the court were error to a reversal.

The court also erred in allowing the state, over the timely objection of defendant, to ask the defendant if he had been arrested by the marshal several months prior to the time of the present difficulty complained of, and also the following question, “I will ask you if he didn’t arrest you on January 13th, in your garage?” These matters were also’ foreign to the issues here involved, and the fact that this defendant had been arrested several months prior to the alleged commission of the offense here complained of should not have been allowed in evidence upon the trial of this case. It was prejudicial to the substantial rights of the defendant, and his objections to the questions should have been sustained.

The judgment of conviction appealed from is reversed, and the cause remanded.

Reversed and remanded.

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101 So. 356, 20 Ala. App. 259, 1924 Ala. App. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boshell-v-state-alactapp-1924.

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