Sampson v. State

SAMFORD, J.

Motion was made in this case to retax certain costs incurred by the state in having summoned certain witnesses not examined. Courts cannot judicially know for what purposes witnesses are summoned, or that such witnesses were in excess of those allowed by statute. In a case of the character of the one on trial, the evidence sometimes takes a wide range, and the solicitor in preparing the ease for trial is permitted to anticipate defenses within legitimate bounds. In the absence of evidence convincing the court that ,the witnesses, whose costs were sought to be retaxed, were unnecessary or in excess of the statutory limits, the motion to retax was properly overruled. Barnard v. State, 71 Ala. 15 .

While* the injured party was being examined as a witness, the solicitor asked this question: “Did the cut reach the cavity?”

*673 The objection to this was general, not stating any grounds. The question was not subject to a general objection. Moreover, the answer could not have been prejudicial, as the witness immediately described .the wound, stating the facts, from which the jury could draw its own conclusion, without answering the question objected to.

The court properly permitted the injured party to testify as to his,age. Anderson v State 209 Ala. 36 , 95 South. 171 .

The clothes worn by the injured party at the time of the injury are admissible as part of the res gestee.

On cross-examination of the injured party, defendant’s counsel asked several questions seeking to prove tliat just prior to the time the alleged attack was made, the witness was sitting in his house “brooding” ' over a difficulty had between witness and defendant the “evening before.” The court sustained the state’s objections to these questions, and defendant excepted. At,that time there was no evidence of an overt act on the part of the witness, and no semblance of testimony as to self-defense on the part of defendant, tinder the facts as they appeared, the action of defendant in assaulting witness was without any provocation. After the defendant had introduced evidence tending to show self-defense, or if counsel had informed the court as to what he expected the evidence later to develop, the testimony called for might have been relevant; but in the light of the testimony then developed, the mental attitude of the witness towards the defendant' was in no way relevant. Andrews v. State, 134 Ala. 47 , 32 South. 665 ; Kirby v. State, 151 Ala. 66 , 44 South. 38 ; Moore v. State, 16 Ala. App. 503 , 79 South. 201 .

The fact that “Vennie fainted” when she saw that her father was cut, while irrelevant, is not of sufficient importance to justify a reversal of the case. In the trial of hotly contested eases, isolated and irrelevant remarks from witnesses sometimes “creep in.” Taken alone, there might be technical error, but, taken with the entire statement of the witness, are without prejudicial injury.

The advice given defendant by Dowdy, a justice of the peace", prior, to the defendant’s going to the house where the difficulty arose, was hearsay and inadmissible. Charges 1, 5, 8, and 9, if for no other reason, are bad and properly refused for the reason they do not predicate the finding of the jury on. the evidence. Edwards v. State, 205 Ala. 160 . 87 South. 179 . Besides, the court had fully covered evéry principle of law set out in these charges.

Charge 2 omits the elements of self-defense.

Charge 7 predicates the conclusion of the jury on a part of the testimony, and charges 6 and 4 are covered by the oral charge.

We find no error in the record, and the judgment is affirmed.

Affirmed.

*674 MEMORANDA OF OASES DECIDED DURING THE PERIOD EMBRACED IN THIS VOLUME, WHICH ARE ORDERED NOT TO .BE REPORTED IN FULL.