Riley v. State

88 Ala. 193

Opinion

STONE, C. J.

The fact of excusing the juror Grant from serving on the jury, without requiring him to be sworn to the truth of his excuse, is not available to defendant, unless he had objected on that ground in the court below. We can net know that the presiding judge did not himself dis cover that the juror appeared to be sick. Moreover, when an objection is made in a trial court, which does not in its very nature disclose the ground on which it is rested, candor and fair dealing alike require that the ground be stated. This course of 'practice will relieve judges of the imputation of appearing to decide what they had not in contemplation. When a general objection is made by counsel, and he refuses to disclose the ground or grounds of such objection, when interrogated thereto, the court commits no error in overruling it. — -3 Brick. Dig. 443, § 567; Wallis v. Rhea, 10 Ala. 451; 1 Brick. Dig. 887, § 1189.

When witnesses are placed under the rule, it is discretionary with the presiding judge to permit exceptions to its enforcement. And to allow witnesses, previously examined, to be recalled at any stage of the trial, is also a matter of discretion which can not be reviewed. — 1 Brick. Dig. 886, § 1174.

The Circuit Court erred in permitting the witness Robert Black to testify that, in his opinion, or judgment, certain tracks were made by defendant. It was for the jury to determine, from the facts deposed to, whether they were or not. — 1 Brick. Dig. 873, §§ 978, 980, 982; 3 Ib. 435-6. Experts are an exception to the rule.

Charge No. 3, asked by defendant, ought to have been given. The other charges were argumentative, and were properly refused.

Reversed and remanded,