Alabama Court of Appeals, 1925

Shaw v. State

Alabama Court of Appeals · Decided June 30, 1925 · Samford

106 So. 685; 21 Ala. App. 156; 1925 Ala. App. LEXIS 281 (Southern Reporter)

Counsel

Geo. E. Barnett and H. A. Bradshaw, both of Florence, for appellant. The question asking the witness whether prosecutrix appeared to be nervous and excited called for an opinion, and invaded the province of the jury. Gassenheimer v. State, 52 Ala. 313 . A witness may be questioned on cross-examination as to any matter, to test her character for credibility, her memory, and means of knowledge. Harbin v. State, 19 Ala. App. 623 , 99 So. 740 ; Amos v. State, 96 Ala. 120 , 11 So. 424 . Evidence that prosecutrix and defendant were frequently in each other's company at about the time of the commission of the offense is admissible to show that opportunity had been had for the commission of the offense, and that it had not been done. Martin v. State, 17 Ala. App. 73 , 81 So. 851 . A witness should not be permitted to give expert testimony without being first shown to be qualified. Dominick v. Randolph, 124 Ala. 557 , 27 So. 481 . The refusal of charge 2 constituted reversible error. Doty v. State, 9 Ala. App. 21 , 64 So. 170 ; Green v. State, 19 Ala. App. 239 , 96 So. 651 ; Bell v. State, 89 Miss. 810 , 42 So. 542 , 119 Am. St. Rep. 722, 11 Ann. Cas. 431. Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State. It is permissible for one to testify that another appeared nervous and excited. 4 Michie's Ala. Dig. 210. Testimony as to the condition of the injured party was properly admitted. Ex parte State, 210 Ala. 662 . 99 So. 65 . Charge 2 was properly refused. Ex parte State, Jones v. State, 213 Ala. 390 , 104 So. 773 .

Opinion of the Court

SAMFORD, J.

It is permissible for one to testify that another appeared nervous or excited. 4 Mich. Dig. p. 210, par. 290 (3).

There can be no reversal predicated upon tbe rulings of the court in refusing to permit defendant to ask the witness India Baugh on cross-examination, “Do you say you did or did not tell Mr. Hill that Otto Shaw had kidnapped Indiana Morgan?” because this witness had just testified that she had, and as to when the witness was again at Mr. I-Iill’s office was immaterial.

As to whether the little girl had on a former occasion “jumped on defendant’s car’’ was not relevant to the issues here.

The testimony as to lacerations of the parts, by the witness Simpson, did not call for the testimony of an expert, and hence his testimony on .this point was admissible without his having to qualify.

Refused charge 2 has been recently condemned in Alonzo Jones v. State, 213 Ala. 390, 104 So. 773.

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

Affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.