Opinion
4 Div. 285.
February 2, 1937. Rehearing Denied March 16, 1937.
Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.
Will Ledbetter was convicted of violating the prohibition law, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Ledbetter v. State, 234 Ala. 74, 173 So. 648.
The affidavit upon which the trial was had, alleged that affiant had "probable cause for believing and doth believe that the offense of violating the prohibition law by having intoxicating liquor in his possession has been committed" by defendant.
Defendant moved to quash the affidavit on the ground that it charged no offense.
Ben Stringer, a witness for defendant, testified in effect that at the time of defendant's arrest in his café, and while in the act of pouring whisky from a bottle, said whisky had been furnished by another party and that defendant had seized it, reprimanding the party who produced it.
On cross-examination, the solicitor asked the witness if it was not a fact that, after testifying in county court in behalf of defendant, witness did not come to the solicitor and state that he had testified to a lie and that he wanted to apologize therefor. He was also asked if he did not likewise go to the judge of the county court and make a like statement. Defendant's objections to these questions were overruled, and the witness answered in the negative.
In rebuttal the State examined as a witness the judge of the county court. He was asked if witness Stringer had come to him after trial of defendant in his court, state that he had sworn to a lie and offer to apologize. Objection by defendant was overruled, and the witness answered affirmatively.
Clayton, Clayton Clayton, of Clayton, for appellant.
The affidavit alleges no offense against the laws of Alabama, in charging a "violation of the prohibition law."
The questions propounded to witness Stringer were not appropriate to lay a predicate for impeachment. No intimation is given as to the materiality of the matter as to which witness was said to have lied. Western R. Co. v. Turrentine, 197 Ala. 603, 73 So. 40; Dominey v. Dowling-Martin Gro. Co., 200 Ala. 619, 76 So. 977; Ala. City G. A. R. Co. v. Kyle, 204 Ala. 597, 601, 87 So. 191; Wilkerson v. State, 18 Ala. App. 478, 93 So. 205; Cochran v. State, 20 Ala. App. 109, 101 So. 73.
A. A. Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.
The affidavit designated the offense by name and was sufficiently specific to apprise the defendant of the offense for which he must stand trial. Slater v. State, 230 Ala. 320, 162 So. 130. There was no error in the method followed in the matter of impeaching the witness Stringer. Riley v. State, 209 Ala. 505, 96 So. 599; Laws v. State, 209 Ala. 174, 95 So. 819; Floyd v. State, 22 Ala. App. 347, 116 So. 318.
Appellant was convicted of the offense of "violating the prohibition law by having intoxicating liquor in his possession." We find nothing that seems to call for special comment by us.
We have read the testimony sitting en banc; and we are of the opinion, and hold, that it made a case to be decided only by the jury.
The affidavit sufficiently charged the offense for which appellant was convicted.
It was of course permissible to impeach appellant's witness Stringer by showing that he had made prior statements inconsistent with his testimony upon the trial.
We do not find that the rules governing such impeaching questions were violated in the examination of this witness.
In fact, we find, nowhere, error of a prejudicial nature to have been committed in the proceedings.
And the judgment is affirmed.
Affirmed.