Mitchell v. State

94 Ala. 68

• Court: Supreme Court of Alabama
• Decided: November 15, 1891
• Status: Published

Opinion

WALKER, J.

— There was evidence tending to show that a crow-bar, which had been kept in the depot at Evergreen, had been missing from that place since the night the obstruction was put on the track; that the defendant was seen on the track that night, with a crow-bar, and that a crow-bar was. found the next morning at the scene of the obstruction. Evidence was admissible to show that the crow-bar which was found there was the same one which was missing from the depot. On the question of the identification of persons or things, a witness may be allowed to speak as to his opinion or belief. He may be certain and free from doubt, or he may not be fully assured of the correctness of his conclusions. He may state the result of his examination of the person or object sought to be identified, and it is proper for him so to express himself as to inform the jury whether his statement is made confidently or doubtingly. The testimony is not to be excluded because the witness does not speak with positive assurance. — Turner v. McFee, 61 Ala. 468; Walker v. State, 58 Ala. 393; 1 Greenl. on Ev., § 440; 1 Wharton on Ev., § 511. There was no error in the instruction to the witness Deming on the question as to the identity of the crow-bar, and the answer of the witness, after such instruction, was properly admitted.

There was evidence tending to show that a shovel, which had been left on the side of the railroad near the scene of the obstruction, was found under the defendant’s house after his arrest. It was not improperio permit this shovel to be produced and exhibited to the jury.— Watkins v. The State, 89 Ala. 82; Holley v. The State, 75 Ala. 14.

On the cross-examination of one of the witnesses for the State, he was asked as to the number of times he had been in court and had testified. It was not proposed to be shown that this witness had been examined in this case before, or had testified in other cases having any connection with or resemblance to this one. We are unable to discover the pertinency or relevancy of the inquiry. It seems plain that the defendant could not have been prejudiced by the action of the court in sustaining the objection to the question.

One of the witnesses for the State had been indicted for the same offense with which the defendant was charged. It was competent for the State to rebut the inference which might be drawn from this circumstance, which was brought out on a cross-examination, by proof that the witness had not been induced by any promise in reference to his own case, to testify against the defendant.

The defendant testified in his own behalf. It was competent for the State to impeach his credibility. For this purpose inquiry into his general character, or reputation, was proper. Such inquiry was not restricted to his reputation for truth and veracity. It was proper to ask a witness if he knew the general character of the defendant in the neighborhood in which he lived. — McInerny v. Irvin, 90 Ala. 275; Ward v. The State, 28 Ala. 53. No objection was interposed to the answers of the several witnesses to that question.

The fourth charge requested by the defendant is confused and involved; besides, it is plainly argumentative in character, and for that reason also, the court was justified in refusing to give it. — Birmingham Union Ry. Co. v. Hale, 90 Ala. 8; Hussey v. The State, 86 Ala. 34; Snider v. Burks, 84 Ala. 53. Obedience to charge No. 9 would have made it the duty ■of the jury to acquit the defendant, if one phase of the evidence tended to exculpate him, whether they believed that evidence or not. It is improper for the court to instruct the jury which of two conflicting theories of the evidence they shall except. — Fonville v. The State, 91 Ala. 39. Bad character may be proved against a witness for the purpose of impeaching his credibility, although the witnesses who testify as to his character fail to state that his character or reputation is such that he would not be believed when testifying on his oath in a court of justice. This consideration discloses one of several objectionable features in charge No. 10. That charge was properly refused. The other exceptions reserved by the defendant during the progress of the trial are obviously without merit.

Affirmed.