Neely v. State

93 So. 382, 18 Ala. App. 565, 1922 Ala. App. LEXIS 229

• Court: Alabama Court of Appeals
• Decided: June 6, 1922
• Docket: 8 Div. 857.
• Status: Published

Opinion

BRICKEN, P. J.

The former opinion rendered by this court in this case is withdrawn, and under the authority of Ex parte State ex rel. Attorney General, Neely v. State (Ala. Sup.) 93 South. 382, 1 we hold that the dem.urrers to the indictment were properly overruled.

Special charges 3, 4,, 5, and 6, alleged to have been refused to defendant, are not properly authenticated. They bear no indorsement of the trial judge, nor do they appear to have been filed with the clerk of the court. It follows, therefore, that these charges cannot be considered.

There was some evidence, adduced upon this trial, tending directly to show defendant’s guilt. Therefore charge No. 1 (the general affirmative charge) was properly refused. The rule is that the general charge should never be given, when there is any evidence, however weak and inconclusive it may be, which tends to make a case against the party who asks it.

On cross-examination of defendant’s witness Jim Burchell the court overruled defendant’s objection to this question asked by the solicitor, “You are under indictment now for making that whisky, ain’t you?” In this ruling of the court there was no error. White v. State, 12 Ala. App. 160, 68 South. 521; Coplon v. State, 15 Ala. App. 331, 73 South. 225. It is always permissible to ask questions on cross-examination having a tendency to elicit testimony showing the interest or bias of a witness. Phillips v. State, 11 Ala. App. 168, 65 South. 673; Byrd v. State, 17 Ala. App. 301, 84 South. 777.

Other rulings of the court upon the testimony, to which exceptions were reserved, have been examined, and are free from error.

The record is without error. Let the judgment of the circuit eourt stand affirmed. „

Affirmed.

1 207 Ala. 585.