Opinion
6 Div. 286.
January 15, 1924. Rehearing Denied February 19, 1924.
Appeal from Circuit Court, Fayette County; R.L. Blanton, Judge.
Green Webster was convicted of violating the prohibition law, and appeals. Affirmed.
Certiorari denied by Supreme Court in Ex parte Webster, 100 So. 202.
S.T. Wright, of Fayette, for appellant.
The burden is upon the state to prove defendant's guilt beyond a reasonable doubt. Caraway v. State, 18 Ala. App. 541, 93 So. 337; Albritton v. State, 94 Ala. 76, 10 So. 426; Beavers v. State, 103 Ala. 37, 15 So. 616; Doby v. State, 15 Ala. App. 591, 74 So. 724. It should have been permitted defendant to ask state's witness on cross-examination if he had not been engaged in manufacturing whisky. Wilkerson v. State, 140 Ala. 165, 37 So. 265; Titus v. State, 117 Ala. 16, 23 So. 77; Johnson v. State, 199 Ala. 255, 74 So. 366.
Harwell G. Davis, Atty. Gen., for the State.
No brief reached the Reporter.
There were two counts in the indictment, but, the conviction being under the first count, it will not be necessary to notice rulings of the court applicable only to the second count.
The defense was that of an alibi, and on this point the court in its oral charge said:
"The proof as to the alibi is sufficient whenever, taken in connection with all the evidence in the case, it is sufficient to generate in your minds a reasonable doubt as to the guilt of the defendant."
This is the rule declared in Caraway v. State, 18 Ala. App. 547, 93 So. 376, and to which we adhere.
Insistence is made in brief of counsel that error was committed by the trial court in another portion of its oral charge, the excerpt being quoted in the brief, but no exception to this excerpt appears in the record. Unless exception is reserved on the trial and appears in the bill of exceptions, no question for review is presented to this court. Bean v. State, 18 Ala. App. 281, 91 So. 499.
Upon the cross-examination of one of the state's witnesses, defendant's counsel sought to prove that witness had been engaged in manufacturing whisky, and that charges of a similar nature as the one for which defendant was then being tried were then pending against witness. This testimony was not relevant for any purpose. If witness had been convicted of manufacturing whisky, such conviction, not involving moral turpitude, could not be used to impeach his reputation. Abrams v. State, 17 Ala. App. 379, 84 So. 862. Nor would such evidence have a tendency to show bias or interest of the witness in favor of the cause or the person on trial.
Much latitude is to be allowed in cross-examination of witness, within the sound discretion of the trial courts, and this discretion will not be reviewed except in extreme cases of abuse of this discretion. Lowman v. State, 161 Ala. 47, 50 So. 43. It may be noted that, in the Johnson Case, 199 Ala. 255, 74 So. 366, the Supreme Court reaffirmed the above rule, and for that reason refused to permit the judgment to be reversed.
The foregoing is also applicable to assignments 8 and 9. We find no error in the record, and the judgment is affirmed.
Affirmed.