Opinion
4 Div. 835.
April 22, 1920.
Appeal from Circuit Court, Covington County; A. B. Foster, Judge.
Powell, Albritton Albritton, of Andalusia, for appellant.
The court erred in refusing to allow it to be shown that on a former occasion Rambo had resisted arrest. The defendant under the evidence was entitled to the affirmative charge. 91 Ill. App.? 363; 156 Ala. 37, 46 So. 858; 5 Cyc. 493, 494; 21 Cyc. 797.
A. R. Powell, of Andalusia, for appellee.
Details of the former arrest were not admissible. 74 Ala. 9; 78 Ala. 5; 7 Ala. App. 255, 60 So. 1006. There was no causal connection between Rambo's death and his intemperate use of liquor. 203 Ala. 33, 81 So. 823. There was no place for an affirmative charge. 82 So. 22; 203 Ala. 137, 82 So. 167; 16 Ala. App. 629, 80 So. 693.
This is the second appeal in this case. The decision on the former appeal will be found in Eminent Household of Columbian Woodmen v. Blackerby, 201 Ala. 443, 78 So. 821.
The right of the sheriff's deputies to carry arms on the occasion of the alleged effort to arrest Rambo was not an issue in this case, and the evidence offered as to what occurred between Deputy Straughn and Rambo on a former occasion, when Straughn arrested Rambo, and whether or not Rambo was then armed, was properly excluded. Its tendency was to inject into the case a collateral issue, and withdraw the attention of the jury from the issues in the case. Thrash v. Bennett, 57 Ala. 156; Mattison v. State, 55 Ala. 224; 1 Greenl. on Ev. 14b.
Where the fact is relevant, the habits or moral character of a particular individual may be shown by the testimony of one who has personal knowledge of the facts, or in some cases by evidence of his general reputation in the community in which he lives, yet such fact is not within the range of what the law terms "common knowledge," and it was not permissible for the witness Straughn to testify that, as a matter of common knowledge, Rambo drank very heavily prior to his death. Chamberlayne's Handbook on Ev. §§ 345, 875.
In view of the physical facts shown in the evidence, the location of the wounds on the person of the deceased, and the bullet or shot holes in his clothing, the relative position of his body, when he fell mortally wounded, to the automobile by which he was standing when the difficulty commenced between the deceased and the defendant's witness, the court was justified in refusing the affirmative charge requested by the defendant. Sovereign Camp, W. O. W., v. Pritchett, 81 So. 823; Bellingrath v. Anderson, 203 Ala. 62, 82 So. 22; Jones v. Jefferson County, 203 Ala. 137, 82 So. 167.
This disposes of the questions presented; and finding no error in the record, the judgment will be affirmed
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.