Opinion
8 Div. 754.
June 30, 1933. Rehearing Denied September 12, 1933.
Appeal from Lawrence County Court; W. R. Jackson, Judge.
Carson Lowery was convicted of violating the prohibition law, and he appeals.
Affirmed.
The bill of exceptions shows the following:
Mertie Wiggins, the first witness called for the defendant, testified as follows:
"My name is Mertie Wiggins and I know Mr. Lowery. I also know Susie McDaniel and Oliver Bracken. I remember one night in August of last year when I gave a party at John Griffin's house. I saw Mr. Lowery down there but I did not see him with any whiskey. I also saw Ewell Lindsey there and he had some whiskey."
Thereupon the solicitor for the state made the following statement in open court, and in the presence of the jury:
"That's immaterial, we're not charging Ewell Lindsey."
Thereupon Judge Jackson, presiding at the trial of this cause, stated in the presence of the jury, "Ewell Lindsey is not on trial."
Thereupon the solicitor for the state made the following statement in the presence of the jury: "We move to exclude the evidence that Ewell Lindsey was there; Ewell Lindsey is dead, — all right let that go in that Ewell Lindsey was there and he had the whiskey."
Thereupon the defendant objected to the statement of the solicitor as follows: "All right, let that go in that Ewell Lindsey had the whiskey down there and that Ewell Lindsey is dead," and defendant thereupon moved the court to grant the defendant a mistrial of this cause, because of the statement of the solicitor in the presence of the jury.
The court overruled the objection, and the defendant duly reserved an exception.
Seybourn H. Lynne, of Decatur, for appellant.
It was error to permit the witness Bracken to testify, over defendant's objection, that he saw defendant with some whisky in a fruit jar. It was not shown that witness had adequate knowledge of the subject-matter to qualify him to express an opinion. Grimes v. State, 22 Ala. App. 84, 112 So. 461; Anderson v. State 20, Ala. App. 505, 103 So. 305; Prouty v. State, 24 Ala. App. 454, 136 So. 492; 22 C. J. 491. Defendant's theory was that Ewell Lindsey had committed the offense for which defendant was tried. The remark of the solicitor, when evidence to support this theory was offered, served to prejudice the defendant in the minds of the jury, and warranted a mistrial.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The state's case depends upon the testimony of two witnesses who testify that they saw defendant with some whisky in a fruit jar, on a certain night, at the house of John Griffin, in Lawrence county.
Appellant insists that the court committed error in permitting the witness Oliver Bracken to testify that the jar seen in defendant's possession contained whisky, because the witness had not qualified as to his knowledge. As to this the witness testified: "I think I know what whiskey is." This was equivalent to saying that in his best judgment he knew what whisky is. In matters of this kind witnesses can only testify as to their best judgment. In the cases of Prouty v. State, 24 Ala. App. 454, 136 So. 492, and Grimes v. State, 22 Ala. App. 84, 112 So. 461, no effort was made to qualify the witness as to a knowledge of the matters about which they were called to testify.
After a witness has qualified as to a knowledge of the thing about which he is called to testify and the adversary is not satisfied as to how he obtained such knowledge, it becomes the subject for cross-examination. If upon such cross-examination it becomes apparent that the witness did not have such knowledge, a motion to exclude the testimony would be in order. Where the testimony of a witness indicates such a lack of definite knowledge concerning the matter in question as to render his testimony destitute of probative force, a motion to exclude should be granted. 22 Corpus Juris, 490 (589).
The remark of the solicitor during the taking of the testimony was not such as to require the withdrawal of the case from the jury and a continuance of the case.
We find no prejudicial error, and the judgment is affirmed.
Affirmed.