Rials v. State

SAMEORD, J. Earnest insistence is made that the state’s witnesses were so thoroughly impeached as to render a conviction on their testimony unwarranted, and to justify this court in setting aside the verdict. The rules governing questions of this character are too well settled to require citation of authority. Where the -evidence is in conflict, the questions involved are for the jury, -and this court will not on appeal disturb that finding. There were two houses burned about the same time. One, the Skipper house, was burned first, and was in the direction of the Faulk house, charged in the indictment. It was relevant for the witness Lunsford to testify that the burning of the Skipper house attracted his attention. A witness may testify to the happening of a contemporaneous fact, as tending to fix his attention on the facts in issue. It was competent for the state to prove by the witness Curtis Adams that his feelings towards the state witness Lunsford were not good. Lunsford was a witness in the case who had testified on behalf of the state, and Adams had just testified to a state of facts tending to impeach Lunsford. This testimony tended to show a bias on the part of Adams as against Lunsford. In Ham’s Case, 156 Ala. 645, 47 So. 126, the person inquired about was neither a party nor a witness. The state was clearly entitled to prove by the witness Lunsford that he had- not made certain statements testified to by other witnesses at the instance of defendant.. There is no exception to the ruling of the court with reference to the motion for a new trial, and hence we cahnot consider the court’s aetiou in that regard. Hopkins v. State, 18 Ala. App. 423, 93 So. 40; Ala. Fuel & Iron Co. v. Courson (Ala. App.) 101 So. 638. 1 Moreover it was in the discretion of the trial judge to permit the jury to separate. Pearson v. State, 5 Ala. App. 68, 59 So. 526. No exceptions having, been reserved to an excerpt from the court’s oral charge, that question cannot be considered. Ex parte State, etc., 80 Fla. 217, 85 So. 785. We find no error in the record, and the judgment is affirmed. Affirmed. Footnotes [1] Post, p. 312.