Opinion
8 Div. 328.
June 30, 1925. Rehearing Denied October 27, 1925.
Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.
Otto Shaw was convicted of having carnal knowledge of a girl under 12 years of age, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Shaw v. State, 214 Ala. 117, 106 So. 686.
Charge 2, refused to defendant, is as follows:
"I charge you, gentlemen of the jury, that after you have applied the evidence to the law as the court has given you, each and every one of you are entitled to your own conviction as to what constitutes a reasonable doubt, and if, after you have considered all the evidence in the light of the law given you by the court, any single one of you have a reasonable doubt as to the defendant's guilt, you will find the defendant not guilty."
Geo. E. Barnett and H. A. Bradshaw, both of Florence, for appellant.
The question asking the witness whether prosecutrix appeared to be nervous and excited called for an opinion, and invaded the province of the jury. Gassenheimer v. State, 52 Ala. 313. A witness may be questioned on cross-examination as to any matter, to test her character for credibility, her memory, and means of knowledge. Harbin v. State, 19 Ala. App. 623, 99 So. 740; Amos v. State, 96 Ala. 120, 11 So. 424. Evidence that prosecutrix and defendant were frequently in each other's company at about the time of the commission of the offense is admissible to show that opportunity had been had for the commission of the offense, and that it had not been done. Martin v. State, 17 Ala. App. 73, 81 So. 851. A witness should not be permitted to give expert testimony without being first shown to be qualified. Dominick v. Randolph, 124 Ala. 557, 27 So. 481. The refusal of charge 2 constituted reversible error. Doty v. State, 9 Ala. App. 21, 64 So. 170; Green v. State, 19 Ala. App. 239, 96 So. 651; Bell v. State, 89 Miss. 810, 42 So. 542, 119 Am. St. Rep. 722, 11 Ann. Cas. 431.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
It is permissible for one to testify that another appeared nervous and excited. 4 Michie's Ala. Dig. 210. Testimony as to the condition of the injured party was properly admitted. Ex parte State, 210 Ala. 662. 99 So. 65. Charge 2 was properly refused. Ex parte State, Jones v. State, 213 Ala. 390, 104 So. 773.
It is permissible for one to testify that another appeared nervous or excited. 4 Mich. Dig. p. 210, par. 290 (3).
There can be no reversal predicated upon the rulings of the court in refusing to permit defendant to ask the witness India Baugh on cross-examination, "Do you say you did or did not tell Mr. Hill that Otto Shaw had kidnapped Indiana Morgan?" because this witness had just testified that she had, and as to when the witness was again at Mr. Hill's office was immaterial.
As to whether the little girl had on a former occasion "jumped on defendant's car" was not relevant to the issues here.
The testimony as to lacerations of the parts, by the witness Simpson, did not call for the testimony of an expert, and hence his testimony on this point was admissible without his having to qualify.
Refused charge 2 has been recently condemned in Alonzo Jones v. State, 213 Ala. 390, 104 So. 773.
We find no error in the record, and the judgment is affirmed.
Affirmed.