Wheat v. State

93 So. 209, 18 Ala. App. 554, 1922 Ala. App. LEXIS 219

Opinion

MERRITT, J.

One count in the indictment charged the defendant with making whisky. It was therefore competent, under the ruling in the case of Hussey v. State, 87 Ala. 121, 6 South. 420, for the defendant to show, as he attempted to do by the witness Robertson, after he had offered testimony that his general character was good, that he (Robertson) had never heard of the defendant making any whisky. As is stated in Hussey’s Case, supra:

“To say his character is good is a positive expression of the fact. To say that the witness has never heard anything against his character, as to the particular phase in which it is put in issue, is negative in form, but often more satisfactory than evidence of a positive character.”

The question propounded to the witness Robertson calling for evidence prima facie relevant and legal, the refusal to allow it was error, although no answer, or proposed answer, of the witness was stated. Phœnix Ins. Co. v. Moog, 78 Ala. 284, 56 Am. Rep. 31.

For the error pointed out, the judgment of the circuit court must be reversed, and the cause remanded.

Reversed and remanded.