Opinion
6 Div. 679.
February 17, 1925. Rehearing Denied April 21, 1925.
Appeal from Circuit Court, Jefferson County, Bessemer Division, J.C.B. Gwin, Judge.
Mathews Mathews, of Bessemer, for appellant.
It was error to permit the solicitor to interrogate the defendant with reference to summoning a witness. Jordan v. Austin, 161 Ala. 585, 50 So. 70. The remarks of the solicitor should have been excluded. Birmingham Ry. v. Drennen, 175 Ala. 349, 57 So. 876, Ann. Cas. 1914C, 1037; Berry's Case, 10 Ga. 511.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
A wide latitude is allowed on cross-examination. May v. State, 16 Ala. App. 541, 79 So. 677. The remarks of the solicitor, complained of, were a mere statement of opinion. Mitchell v. State, 18 Ala. App. 471, 93 So. 46.
Ben Wafer was convicted of possessing, etc., prohibited liquor, and he appeals. Affirmed. Defendant, as a witness in his own behalf testified that on the night of his arrest he had been to a woman's house, and went on down to the road to catch a taxi, when the driver of the car in which the whisky was found drove up, and that witness stopped him and asked for a ride, to which the driver assented. On cross-examination by the state, this witness was asked these questions: "Q. You haven't got her [the woman at whose house he testified he had been] summoned here as a witness to swear for you?" and "Q. And you didn't have that woman summoned here in this case, did you?" To each of these questions defendant interposed an objection, which was overruled by the court. Defendant objected to the following remarks of the solicitor in his argument to the jury: "If he [defendant] had been there, and knew the woman, and had been at her house just a few minutes before, he would have told them when he was arrested; but he didn't, and he couldn't have been there."
The defendant was convicted of violating the prohibition law, and he appeals. One Reeder, a deputy sheriff, arrested defendant and another on a highway. Defendant was riding upon the front seat of a Ford car, beside another, who was driving the car, and at the time there was a five-gallon can of whisky in the car. When the defendant was arrested, he said: "Cap, you've caught me." Defendant offered evidence to prove that the liquor was being transported by the driver of the car, without his (the defendant's) knowledge or participation. Upon the whole evidence, we are of the opinion that the case was properly submitted to the jury. Ex parte State ex rel., etc., Harbin v. State, 210 Ala. 55, 97 So. 426. The question allowed to be asked the defendant on his cross-examination, regarding his failure to have a certain witness subpœnaed, did not show an abuse of the discretion reposed in the trial judge. May v. State, 16 Ala. App. 541, 79 So. 677. The argument of the solicitor, complained of, was permissible. Mitchell v. State, 18 Ala. App. 471, 93 So. 46. We have examined all the exceptions reserved by the defendant, and find no prejudicial error in any of the rulings complained of. Let the judgment be affirmed. Affirmed.