Hainey v. State

DENSON, J. The defendant was convicted for carrying’ a pistol concealed about his person. The defendant offered no evidence, and the point in the case on its merits was whether the pistol, which the testimony showed the defendant had, was carried in such manner as not to he discernable by ordinary observation; and this was a jury question. — Smith’s Case, 96 Ala. 66, 11 South. 71; Ramsey’s Case, 91 Ala. 29, 8 South. 568; Drigger’s Case, 123 Ala. 426, 26 South. 512. Evidence that the defendant was drunlc at the time the state’s witness testified he saw him with the pistol, was not an issuable fact in the case, and was patently immaterial. Its only tendency was to unduly prejudice the jury against the defendant. The court erred in admitting it. — Dean’s Case, 98 Ala. 71, 13 South. 318; Gainey’s Case, 141 Ala. 74, 37 South. 355. We cannot say that the admission of the evidence was not injurious to the defendant’s case, as has been suggested by the attorney general in his brief. What the state’s witness was doing at the time he saw the defendant with the pistol may have been competent as tending to show that he was, or was not, in a position to see the defendant and the pistol, and the court properly overruled the objection calling for such evidence. But the witness’s answer was not entirely responsive to the question, and those parts of it that defendant moved to exclude should have been excluded. Nor have we been able to discover the materiality of the evidence of the relationship between Dick' and Sam Hainey. Neither was examined as a witness, and whether they were brothers or otherwise related, or not related at all, had no tendency to elucidate any issue in the case. The defendant had the benefit of charges 1 and 4 refused to him in other charges given at his request. [149] For the errors pointed out, the judgment of conviction is reversed and the cause remanded. Reversed and remanded. Weakley, C. J., and. Haralson and Simpson, JJ., concur.'