Lollar v. State

• Decision Date: 02 June 1910
• Citation: 167 Ala. 112,52 So. 745
• Parties: LOLLAR v. STATE.
• Court: Alabama Supreme Court

52 So. 745

167 Ala. 112

LOLLAR v. STATE.

Supreme Court of Alabama

June 2, 1910

Appeal from Law and Equity Court, Walker County; A. F. Fite, Special Judge.

Isaac Lollar was convicted of a violation of Code 1907, § 6770, and appeals. Affirmed.

Leith &amp Gunn, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

SAYRE J.

The question put to the witness Windham as to his having been before the grand jury in the case on trial was merely for the purpose of identifying the occurrence as to which he was about to testify with that upon which the indictment was based, and there was no error in its allowance.

As showing the profane discourse, necessary under the indictment to be shown as manifesting a drunken condition, the witness was allowed to state that the defendant was cursing and swearing. The objection taken to this ruling is that the witness deposed to nothing more than his opinion. Jackson v. State, 137 Ala. 80, 34 So. 611, is cited. In that case the defendant was indicted for using abusive or insulting language in the presence of a woman. A witness was allowed to testify that the defendant did use abusive or insulting language. This court said that whether the defendant used abusive or insulting language was a fact in issue, the issue the jury was called to try and decide. It was said that "the witness had already testified that he did not remember the language used; non constat, if he had remembered and repeated the language, it might have been shown that what in the opinion of the witness was an abusive or insulting epithet was not in fact such." In Linnehan v. State, 116 Ala. 471, 22 So. 662, in which the defendant was charged with murder, it was held that a question asking a witness whether she heard the defendant call the deceased hard names was proper, as calling for the statement of a collective fact, subject to cross-examination as to the facts on which the statement or inference was based. But it was said that the answer should have been excluded when it further appeared that the witness did not know what the defendant had said in calling the deceased hard names.

In the case under consideration the witness on direct examination and in response to a question requiring him to state what he saw defendant do and what he heard defendant say on the occasion in issue, testified: "I do not remember the words he used. He was mad at some one, and my recollection is that he said ...