Pate v. State , 158 Ala. 1 ( 1907 )

TYSON, O. J.

The first exception reserved relates to the overruling of- defendant’s challenge for cause to certain persons on the ground that they were deputy sheriffs, and therefore incompetent to serve. The statute (section 7245, Code 1907) exempts sheriffs and their deputies from jury duty, but does not disqualify them. This exemption is a mere personal privilege, which they may waive. — Jackson v. State, 74 Ala. 26; Spigener v. State, 62 Ala. 383.

The testimony of the witness McLaughlin given on the former trial 'was properly admitted. It was open to the trial judge to find that this witness had been legally .sworn and examined upon the former trial of the defendant for the offense, and that since that trial he had moved permanently or for an indefinite time to the state of Mississippi, where he still resided at the date; of this trial. — Jacobi v. State, 133 Ala. 1, 32 South. 158; Lowe n. State, 86 Ala. 47, 5 South. 435. It may be seriously doubted whether the objection interposed raised this question because of its generality. But, conceding that it did, upon the entire evidence pertinent to the inquiry we feel no hesitancy in holding, that the ruling' was correct.

We do not find in the record that the court allowed witness J. B. Ellis to testify as to what defendant’s wife said on the night of his arrest. The contention of appellant’s counsel that the court erred in this respect, being unsupported by the record, is, of course, without merit.

The prosecution offered testimony tending to show that at the time the defendant sold the cow to McLaughlin he wrote a name upon a piece of paper as the seller of the cow. To contradict this the defendant offered testimony tending to show that he could neither read nor write, which was undoubtedly competent, and which the court admitted. One Borden.was examined as a witness for defendant. He testified that he had known his since he was a boy; that he worked for witness “about five years ago,” which was more than two years before the alleged larceny of the cow. He was asked this question : “Well, can he read and write?” Instead of answering the question, “Yes” or “No,” the witness narrated a past occurrence that took place between himself and defendant some five years previous, involving the declaration of defendant that he could not sign his name .at that time, which was excluded, on motion, by the court. If this ruling was error, it was harmless, for the reason that this witness subsequently testified substantially that defendant could not sign his name.

The guilt of defendant upon the charge alleged in the indictment, was dearly, under the testimony, one for the jury. Therefore charge 1, requested by defendant, was properly refused.

. Charge 2, refused to defendant, was also properly refused. Under the testimony there was a conflict as to the flesh marks of the cow alleged to have been stolen. This charge would have required an acquittal of defend-, ant, although the jury may have believed beyond a reasonable doubt that he stole the cow, though they may not have believed beyond a reasonable doubt that her col- or was “black or a black-brown,” as asserted in the charge. There were other marks of her identification besides that of the color of her hair.

The overruling of defendant’s motion for a new trial is, of course, not revisable.

Affirmed.

Dowdell, Anderson, and McClellan, JJ., concur.