Opinion
6 Div. 642.
January 20, 1920. Rehearing Denied February 10, 1920. Reversed on Mandate June 30, 1920.
Appeal from Circuit Court, Marion County; C.P. Almon, Judge.
William Lindsey was convicted of violating the prohibition law, and he appeals. Originally affirmed, but later reversed and remanded, in obedience to mandate of the Supreme Court on certiorari. 204 Ala. 394, 86 So. 87.
E.B. K.V. Fite and C.E. Mitchell, all of Hamilton, for appellant.
Counsel discuss the errors assigned, but without citation of authority.
J.Q. Smith, Atty. Gen., for the State.
No brief reached the Reporter.
The defendant was tried and convicted for a violation of the prohibition laws, and from the judgment appeals to this court.
Emmett Colburn a witness for the state testified that he purchased 2 1/2 gallons of peach brandy from the defendant and paid him $15 for it; that he drank some of it, and that it was intoxicating; that the brandy was in a jug; that he went to defendant's house, where the purchase and delivery of the brandy was made; that Mr. Burpo Wilson, the deputy sheriff, got it before he got home with it. On cross-examination the witness was asked this question by defendant's counsel, "You are just trying to save yourself?" The court sustained the solicitor's objection to the question.
It is always permissible to show any interest or bias a witness may have in a case, and as regards this witness the jury had heard his testimony that he had been threatened, and that he would probably be prosecuted, if the defendant was not convicted, all of which would go to his credibility as a witness, and be weighed by the jury in determining what weight they would give it; but the question to which objection was timely made was general in its nature, and pointed out no specific way in which the witness "was trying to save himself," and for this reason, if for none other, was objectionable. On cross-examination this further question was asked the witness by defendant's counsel, "You testified two ways in county court?" The court sustained the solicitor's objection to the question, and in so doing did not commit any error. This was not the way to attempt to impeach the witness by showing that he had sworn in a contradictory way. It did not appear what the subject-matter of the testifying in the county court was. The witness should at least have had his attention called to the matters in the county court to which reference was had by the question.
John Haney, a witness for the state, testified that in August, 1918, he was sheriff of the county, and Burpo Wilson was deputy sheriff. This was the month in which the alleged offense was said to have been committed. The solicitor asked the witness this question, "Did he (Burpo Wilson) turn over to you 2 1/2 gallons of whisky or peach brandy?" Objection was made to the question; the witness answered, "Yes, sir;" and the defendant made a motion to exclude the answer. The witness Emmett Colburn had previously testified that, after purchasing the brandy and before he got home, Mr. Wilson got it. We think it was proper for this to go before the jury, to be considered along with the other evidence in the case. On cross-examination the defendant could have fully tested out as to whether it was the same brandy that Colburn delivered to Wilson.
We have carefully considered the record in this case, and, finding no reversible error, the case is affirmed.
Affirmed.
June 30, 1920. Reversed and remanded, in accordance with the mandate of the Supreme Court in Ex parte Wm. Lindsey, 204 Ala. 394, 86 So. 87.