Cummings v. State
Decision Date | 01 December 1949 |
Docket Number | 4 Div. 107. |
Citation | 43 So.2d 326,34 Ala.App. 650 |
Parties | CUMMINGS v. STATE. |
Court | Alabama Court of Appeals |
Clayton & LeMaistre, of Eufaula, for appellant.
A. A Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty. Gen for the State.
This appellant has been convicted for the possession of a still to be used for the purpose of manufacturing prohibited beverages.
The evidence presented by the State was, in our opinion, ample in its tendencies to support the verdict of guilty.
Appellant's able counsel argues only one point in his brief as constituting error. After study of this record we are convinced that the point so argued constitutes the only substantial question therein, and that otherwise this record is free of error probably injurious to the substantial rights of this appellant.
The proposition asserted as error arises out of the court's action in overruling appellant's objections to testimony given by Marvin Adams, deputy sheriff of Barbour County, that at the time he arrested appellant at the still he knew appellant's reputation for violence, turbulence and bloodthirstiness, and that same was bad. This testimony was allowed before the appellant had testified and, perforce before his character had in anywise been put in issue.
Under the circumstances under which such testimony was allowed we do not think however that error resulted.
Mr. Adams, as a witness for the State, had testified on direct examination that he, and several other officers, had secreted themselves around the still in question, and after awhile the appellant carrying a shotgun, came to the still. There appellant checked the mash by tasting it on his finger and made some repairs on the dam in the branch on which the still was located. Adams arrested the defendant as he was leaving the still.
According to Mr. Adams the appellant admitted ownership of the still after he had been taken to jail. This statement was made several hours after the raid, and proper predicate was laid prior to its introduction.
On cross examination, apparently in an attempt to impeach the voluntary character of the alleged confessory statement, defense counsel inquired if he, Adams, had not held a gun in appellant's face and threatened to kill him before the statement was made. The question was answered in the negative. The record then shows that the cross examination was continued in the following tenor:
'Q. You didn't have a pistol on him at all that day? A. At the still, yes sir. When John Cummings went to leave the still I was laying on my belly out there in the grass. It was a wide open space, about as wide open as this courtroom, nothing but broom sage, and I had crawled up to as far as from here to the front of the building to the still and was laying down, and when John started towards me I raised up when he got about as far as from here to you and I said, Drop that gun, and when he dropped it I said, Turn around and go back to the still.
'Q. Who took his gun at that time? A. I took it.
'Q. Didn't you have that shot gun on that man? A. I marched him ahead of me to the car.
'Q. You had it in your hand with the gun loaded? A. It was like I got it from him. I don't know whether it was loaded or not.
'Q. You don't know whether it was loaded or not? A. No, sir.
'Q. What did you tell John Cummings you were going to do with that gun then?
Mr. Borders: We object to that. That was in the morning at the still.
'The Court: That was prior to the time he made his confession.
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It was after the above cross examination that the court, over appellant's objection, admitted testimony of...
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