Mayberry v. State

• Citation: 18 So. 219,107 Ala. 64
• Parties: MAYBERRY v. STATE.
• Decision Date: 25 July 1895
• Court: Supreme Court of Alabama

18 So. 219

107 Ala. 64

MAYBERRY v. STATE.

Supreme Court of Alabama

July 25, 1895

Appeal from circuit court, Bibb county; N. D. Denson, Judge.

Allen Mayberry was indicted, tried, and convicted for carrying a pistol concealed about his person, and appeals. Affirmed.

The testimony for the state tended to show that the defendant was guilty as charged in the indictment, while the defendant's testimony was in direct conflict with that of the state, and tended to show that, at the time specified, he did not have a pistol concealed about his person. The state introduced one Eady as a witness, who testified that he was standing 45 or 50 yards from the defendant, and that he "saw something in the defendant's right hip pocket that looked like a pistol," and that he "was in plain view, and saw the object well." The defendant objected to this testimony, and moved the court to exclude the same. The court overruled the objection and motion, and the defendant duly excepted. Upon the introduction of one Parker as a witness for the defendant, and after he had testified that he saw the defendant at the time and place specified by the state's witness, and that four or five minutes later, during which intervening time he did not see the defendant, he met the defendant at the public well, the defendant proposed to prove by said witness that he approached the defendant at the public well, and asked the defendant if he had a pistol on his person, and at once searched the pockets of the defendant, and that he found no pistol on his person. The state objected to this evidence which objection was sustained by the court, and the defendant duly excepted.

Logan Hargrove & Vandegraaff, for appellant.

Wm. C Fitts, Atty. Gen., for the State.

BRICKELL C.J.

The general rule is that witnesses must testify to facts, and are not permitted to express mere matters of opinion. The rule has its boundaries and exceptions, which are as well defined as the rule itself. Where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind; or if, from the nature of a particular fact, better evidence is not attainable, the opinion of a witness, derived from observation, is admissible. 1 Whart. Ev. § 511; Lawson, Exp Ev. 460. The principal fact to be proved was that, at a particular time, the defendant carried a pistol concealed about his person. The fact that he...