Prescott v. State

103 So. 75, 20 Ala. App. 466, 1924 Ala. App. LEXIS 389

• Court: Alabama Court of Appeals
• Decided: December 16, 1924
• Docket: 4 Div. 964.
• Status: Published

Opinion

SAMFORD, J.

It is first insisted that the court erred in‘refusing to grant a new trial, because no proof was made of the venue. While this may be true, it is admitted that the defendant did not comply with circuit court rule 35, by bringing the omission to the attention of the trial court. Since the question was not properly raised on the trial, it cannot be raised for the first time on motion to set aside the verdict. Wadsworth v. State, 18 Ala. App. 352, 92 So. 245.

It is now insisted that the court erred in sustaining the state’s objection to the question propounded to a state’s witness on cross-examination:

“Did you know that you all didn’t have any right that night out there to shoot at that car ?”

This question called for an uncommunicated mental status, and also for an opinion on a question not then being litigated, as to which a witness may not testify. Hembree v. State, ante, p. 181, 101 So. 221; Hill v. State, 18 Ala. App. 172, 90 So. 62.

On the cross-examination of Homer Prescott, son. of one of the defendants, he was asked:

“The officers went there to your place one time, and found some rum on your place, didn’t they ?”

Objection to this question was overruled. The witness then answered:

“They found some rum- in the woods below my house one time. They never found any at my house. I never made none in my life.”

A wide latitude musit, of necessity, he allowed on cross-examination, and for that reason the court does not hold the ruling above to have been prejudicial error. Stevenson v. State, 18 Ala. App. 174, 90 So. 140. Moreover, the answer was favorable to defendant, and therefore, if error, the question did not injuriously affect the defendant.

After reading and considering the whole record, we are of the opinion that no substantial rights of the defendant have been injuriously affected, and therefore, the record being free from error, the judgment is affirmed.

Affirmed.