Gladden v. State, 7 Div. 133
Decision Date | 25 October 1951 |
Docket Number | 7 Div. 133 |
Citation | 54 So.2d 610,256 Ala. 368 |
Parties | GLADDEN v. STATE. |
Court | Alabama Supreme Court |
Keener & Keener, Centre, for petitioner.
Si Garrett, Atty. Gen., and A. A. Carmichael, Asst. Atty. Gen., opposed.
The petitioner was convicted on his trial before a jury in the law and equity court of the offense of driving a motor vehicle on a highway of the state while intoxicated in violation of the provisions of § 2, Title 36, Code of 1940. On his appeal the judgment of conviction was affirmed. He now complains that the Court of Appeals erred in holding that, 'Where however an opportunity for observation is shown, even though slight, a witness should be considered competent to testify as to what he did observe', 54 So.2d 609.
We think this was within the well established exception to the general rule stated in Mayberry v. State, 107 Ala. 64, 67, 18 So. 219, 220, that
As held by the Court of Appeals the slight opportunity to make observation goes to the weight of the evidence, and this was for the jury. Spooney v. State, 217 Ala. 219, 224, 115 So. 308, 313, cited by petitioner does not support the contention of the petitioner that the court erred in not excluding the testimony of the witness Hurley. In that case the opinion states: * * *'
In the instant case, as the evidence set out in the opinion of the Court of Appeals shows, the act of driving the motor vehicle, the condition of the driver and the arrest of defendant, were within the res gestae of the offense.
The writ of certiorari is therefore due to be denied. It is so ordered by the court.
Writ denied.
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