Opinion
8 Div. 986.
April 16, 1940. Rehearing Denied May 14, 1940.
Appeal from Circuit Court, Jackson County; A. E. Hawkins, Judge.
Loyd Fairbanks was convicted of violating the prohibition law, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Fairbanks v. State, 239 Ala. 620, 196 So. 747.
H. T. Foster, of Scottsboro, for appellant.
Brief did not reach the reporter.
Thos. S. Lawson, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.
Testimony of state's witness was not subject to exclusion because an attempt had been made to impeach such witness. Such testimony together with impeaching evidence go to the jury for its consideration. The weight to be given it is a matter for the jury to determine. Likewise the question whether the witness has been impeached. Feore v. Trammel, 212 Ala. 325, 102 So. 529. Impeachment does not nullify the statement of a witness. Jones v. State, 23 Ala. App. 395, 126 So. 178. The allowance of recall of a State's witness was a matter resting in the sound discretion of the court, and will not be reviewed here. Rhodes v. Lowry, 54 Ala. 4; Phoenix Ins. Co. v. Moog, 78 Ala. 284, 56 Am.Rep. 31; Peagler v. State, 207 Ala. 586, 93 So. 536; Northern Assur. Co. v. Stewart, 228 Ala. 201, 153 So. 243.
The indictment, in code form, charged the defendant with the offense of violating the State's prohibition law, Code 1923, Section 4615 et seq. According to the State's evidence, the defendant, within twelve months of the finding of the indictment, sold and delivered to the State's witness prohibited liquor, which he and his friend drank and became thereby intoxicated. The defendant denied his guilt and furnished evidence tending to show that the prosecution had been inspired by the father of State's witness, who was at enmity with the defendant. The issue was for the jury; and the evidence was ample to support the conviction.
The question of the bias or prejudice of a witness is a pertinent inquiry for the jury in weighing the testimony of the witness, Feore v. Trammel, 212 Ala. 325, 102 So. 529, but the fact of such bias does not warrant the exclusion, by the court, of such witness' testimony from the jury. Jones v. State, 23 Ala. App. 395, 126 So. 178. Likewise, it was within the discretion of the court, in the present case soundly exercised, to allow the prosecuting witness to be recalled for further examination by the State as to the res gestae. Peagler v. State, 207 Ala. 586, 93 So. 536. These points of error insisted upon in appellant's motion for new trial, as well as others of less import, not necessary to mention, are, therefore, without merit.
Affirmed.