Keeble v. State , 14 Ala. App. 31 ( 1916 )

BROWN, J.

(1) On the showing made by appellant that his counsel was seriously ill, and that his illness occasioned a delay of only one day in filing the transcript with the clerk of this court, the motion to dismiss the appeal is overruled.

(2) The bill of exceptions was presented-to the trial judge on the ninetieth day after the rendition of the judgment, and therefore within the time allowed by the statute. — Code 1907, § 3019. The motion to strike the bill of exceptions is therefore overruled.

(3, 4) After the defendant offered evidence tending to show that Foster, the person assaulted, had a knife in his hand, with which he was making an assault on defendant, when defendant struck him with an axe handle, the state recalled Foster, who .testified without objection that he had a knife at the time he was assaulted by the defendant; that the knife was in his pocket, and after the difficulty it was taken from his pocket by Ed Lawler, and Lawler gave the knife to Dr. Bonner. In response to a question of defendant’s counsel, the witness stated that this occurred at the home of Foster. .Thereupon the defendant made motion to exclude this testimony, which was overruled.

The ruling of the court may be justified on two grounds: First, it has been repeatedly ruled that a party may not speculate as to what a witness will say, and, after he finds that his testimony is detrimental, have it excluded (Hudson v. State, 137 Ala. 64, 45 South. 854; Downey v. State, 115 Ala. 108, 22 South. 479); second, it does not appear from the record how soon after the difficulty this transaction occurred, nor how far away from the place of the difficulty. For all that appears, the occurrence may have been immediately after the difficulty, and in such close proximity thereto as to make it a'legitimate and material fact shedding light on the matter at issue. Furthermore, the evidence tends to show that Foster was seriously injured, and, for all that appears, he was so seriously injured that he could not have closed his knife and placed it in his pocket after the difficulty.

For the reasons last assigned, we are not able to say that the testimony of Dr. Bonner, given when recalled in rebuttal, was erroneously admitted.

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

Affirmed.