Longmire v. State

130 Ala. 66

Opinion

DOWDELL, J.

A mistake in the name of a juror, either in the renire or in the list served on the defendant. is not sufficient cause to quash the venire.—Code of 1896, §5000; Kimbrell v. State, ante p. 40, and authorities there cited. Moreover, the objection was not made until after the jury of twelve to try the case had been selected and sworn. The objection came too late for any purpose.

The objection to the question asked bv the solicitor on the eross-examinaton of the defendant’s witness McNeil, was general without stating any ground and went to the interrogatory in its entirety. The question called for both legal and illegal evidence. So far as showing a prior difficulty between the defendant and deceased, it was proper and legal for the purpose of showing ill will or malice. But it was improper and illegal wherein it sought to elicit the particulars of such prior difficulty.—Harrison v. State, 78 Ala. 12; Garrett v. State, 76 Ala. 21; McAnally v. State, 74 Ala. 9; Gray v. State, 63 Ala. 66; Jones v. State, 116 Ala. 468; Harkness v. State, 129 Ala. 71.

The trial court cannot be put in error by its ruling on a general objection to an interrogatory which calls for evidence partly legal and partly illegal, any more than on a general objection to evidence which is legal in part and illegal in part, without specifying the illegal. Borland v. Walker, et al., 7 Ala. 269; Donnell v. Jones, 13 Ala. 505; Henry v. Hall, 106 Ala. 86.

The question to which this general objection was made brought out evidence as to particulars of the prior difficulty inquired about, although this part of the evidence relating to the prior difficulty was illegal, the State having so introduced it, entitled the defendant upon a rebuttal examination of such witness to show all of the particulars of such prior difficulty, under the rule of allowing illegal evidence to be rebutted by illegal evidence.—Morgan v. State, 88 Ala. 224; Sharp v. Hall, 86 Ala. 110; Ford v. State, 86 Ala. 385; Gandy v. State, 85 Ala. 20; Gordon v. State, 129 Ala. 113.

The court erred in not permitting defendant’s question to the witness McNeil, which called for evidence in rebuttal of that drawn out by the State. For this error the' judgment must be reversed and the cause remanded.