Ratliff v. State , 122 Ala. 104 ( 1898 )

DOWDELL, J.

— The defendant was tried and conAicted under an indictment for the Avanton injury of a hog, the property of one Nelsie Garth. .The testimony on the part of the State tended to shoAV that the hog Avas injured by the defendant’s dog on the 3d day of August, 1896, Avhile in the defendant’s field, and that the defendant Avas present at the time and setting the dog upon the hog. The defendant asked one Katliif, avIio testified in behalf of the defendant, to state whether the defendant Avas sick during the fall of 1896, and if so Avho looked after keeping the stock out of the field, and Avhether or not defendant was about the field especially in August, 1896. The solicitor objected to the question, and the objection Avas sustained, to which action of the court, the defendant excepted. While it does not appear Avhat the ansAver Avould have been, if the witness had been permitted to answer, it is manifest that the evidence sought was relevant to the issue. If it was sought to prove by this witness, that the defendant was not about the field in the month of August, which covered the time of the ah ieged injury fixed by the State, it was clearly relevant and competent; being strictly in rebuttal of testiznony introduced by the State, and it was error to refuse it.

A defendant cannot be heard in argument to impeach a bill of exceptions signed by the presiding judge as the defendant’s bill of exceptions, and which the defendant accepts and znakes a part of his record on an appeal to this court. If the bill of exceptions signed by the presiding judge, be not as tendered by the defendant, the defendant is not bound to accept the same, and may proceed to establish his bill, provided his bill as tendered is tz’ue and the presiding judge refuses to sign it.

There was no error in refusing the second written charge requested by the defendant. This charge was bad in several respects. It was a clear invasion of the province of the jury. The testimony of the witness Sandlin on cross-examination shows that the statement made to him by the defendant, was prior to the injury to the hog, and on the morning of the same day.

As to the other written charge requested by the defendant and refused by the-court, there was no possible injzzry to the defendant in the refusal. The bill of exceptions sets out a charge given by the court at the defendant’s request, which fully embraced and covered all that was requested by the refused charge.

For the error pointed out in sustaining the State’s objection to question asked, the witness Ratliff by the defendant, the judgment must be reversed and the cause remanded.