Horsley v. State

96 So. 937, 19 Ala. App. 263, 1923 Ala. App. LEXIS 131

• Court: Alabama Court of Appeals
• Decided: June 12, 1923
• Docket: 7 Div. 942.
• Status: Published

Opinion

BRIOKEN, P. J.

This trial was had by the court without a jury. The accused was charged with violating the prohibition law, the specific charge being that within the time covered by the indictment he sold one quart of corn whisky to state witness Donahoo and received'therefor $1.75. No question as to venue is involved. The defendant dénied selling the whisky to Donahoo, and an issue of fact was thus presented. ■

Pending the trial only one exception was reserved to the ruling of the court. It occurred as follows:

Bert Myers, a witness for defendant, testified:

“I know Manly Donahoo [state witness] and defendant — am not related to either of them.”

And, after testifying to the good character of defendant, he was asked by counsel for defendant:

“Did you purchase any whisky from Manly Donahoo in August before this indictment was returned against this defendant?”

Upon objection by the state defendant’s counsel made known to the court that he expected* the witness to answer the question in the affirmative, and that he expected to show that Manly Donahoo sold 'whisky just prior to the time when he testified before the grand jury against the defendant, and that the testimony was offered for the purpose of showing the general character of the state witness Donahoo and its effect upon his credibility as a witness.

The court properly sustained the objection to the question, as the testimony thus, sought to he adduced was inadmissible for the purpose stated, or for any purpose. A mere accusation against a witness even for a crime -which involves moral turpitude is not admissible as affecting , the credibility of a witness. In order to thus attack the credibility of a witness it must be shown that a conviction for an offense involving moral turpitude, in a court of competent jurisdiction, was had. In the instant case, even if it had been shown that Donahoo had regularly' been convicted of the offense of violating the prohibition law, this fact could not be proven in order to impeach his testimony or affect his credibility as* a witness. Ex parte Marshall, in re Marshall v. State, 207 Ala. 566, 93 South. 471.

As stated, the testimony in this .case was in conflict. There was ample evidence upon which to predicate the -judgment rendered. The record is free from error, and the judgment appealed from is affirmed.

Affirmed.