Henderson v. State

95 So. 57, 19 Ala. App. 80, 1923 Ala. App. LEXIS 10

• Court: Alabama Court of Appeals
• Decided: January 9, 1923
• Docket: 6 Div. 166.
• Status: Published

Opinion

SAMEORD, J.

The indictment contained two counts, the first charging that the defendant manufactured liquor. The result of the verdict was- an acquittal of the charge under the first count, and a conviction under the second, so that consideration of all questions relating to the first count may be eliminated.

[1, 2] The witness Graves was asked by the solicitor:

“Did you or not see the defendant in the possession of a still before you went before the grand jury?”

This question called for a conclusion of the witness as to the question at issue before the jury, and was subject to timely objection. but no objection was interposed by defendant until after the witness had answered, and no motion was made to exclude the answer. No rule is better settled, than that objections to testimony, to be available, must be timely. Parties cannot speculate on the answers of witnesses to illegal questions, and, when unsatisfactory, get the benefit of an exception.

[3] The foregoing statement of the law ap-lies to tbe defendant’s objection to the question: “Was he arrested at that point?” In addition to the above, as to this- objection, it does not appear that the court ruled on the question, and an exception was reserved. ■ This is necessary to a review by this court.

[4] The witness Graves had been qualified as to his knowledge of how whisky was made, and therefore testified as an expert when he described the still and said that it was suitable for making whisky. Ex parte State ex rel. Davis, 207 Ala. 453, 93 South. 501.

[5] There was no error in the ruling of the court in permitting state to ask the quqgtion: “Did the defendant ever make any statement over there after he was arrested?” This was a preliminary question to proof of a confession, and was proper. The questions relating to whether such statement was voluntary properly follow.

16,7] A defendant may prove -his good character as a fact, affecting the question of his guilt or innocence, but he cannot prove his good character for truth and veracity, until it has been first assailed. Hays v. State, 110 Ala. 60, 20 South. 322; Funderburk v. State, 100 Ala. 36, 14 South. 877. At the time defendant sought to introduce proof of good chara.cter for truth and veracity, no effort had been made by the state to assail his character on that point. The proof of a statement by defendant of an incriminating nature, before defendant had been examined as a witness, could not be so construed.

[8] The court properly excluded from the jury the statement of the defendant sought to be testified to by him: “And I said I will hide this thing and find out who’s it is.” Self-serving declarations are not admissible.

[9] If it was material on direct examination to inquire about Logan’s cow eating defendant’s oats, it was proper, on cross-examination, to inquire why Logan did not go down to see what damage had been done.

[10] In attempting to prove good character, it is not competent for the defendant to testify that he had never, been prosecuted in a court. It is not the prosecution for crime that affects the character. Until a judgment of conviction is rendered each defendant is presumed to be innocent.

[11] Under- the evidence in this case the general charge as to the first count of the indictment was properly refused, but whether so or not the ruling of the court could not effect a reversal as the verdict of the jury was an acquittal of that charge.

[12J The excerpt from the court’s oral charge, made the basis of defendant’s motion for a new trial and stated in the third ground of the motion, is not a'fair statement of the court’s charge. In the oral charge the court said:

“If the defendant since November 30, 1919, had in his possession a still, apparatus, appliance, or some device or substitute therefor, to be used for the purpose of manufacturing- prohibited liquors or beverages in this counts', and before finding of this indictment, he would be guilty as charged in the second count of this indictment. Or, if he was in possession of it, either individually or jointly with another or others, he would be guilty as charged in this count, provided, of course, it was in this County, and since the 30th day of November, 1919, and before the finding of this indictment.”

i This is a clear statement of the law of this' case, and as to the burden of proof the court in another part of the charge clearly stated the law. The court properly overruled the motio]j,for new trial, and we find no error fn the record. The judgment is affirmed.

Affirmed.