McCalman v. State
Decision Date | 23 June 1892 |
Citation | 11 So. 408,96 Ala. 98 |
Parties | MCCALMAN v. STATE. |
Court | Alabama Supreme Court |
Appeal from circuit court, Cherokee county; JOHN B. TALLY, Judge.
Indictment of Lorenzo D. McCalman for gaming. From a judgment of conviction, defendant appeals. Affirmed.
J L. Burnett, for appellant.
Wm. L. Martin, Atty. Gen., for the State.
The defendant was tried and convicted of the offense of gaming. The indictment follows the form prescribed by the Code. The statute prohibits the playing "at any game with cards or dice, or any device or substitute therefor, at any tavern, inn, storehouse for selling or retailing spirituous, vinous, or malt liquors, or a place where spirituous, vinous, or malt liquors are retailed, sold or given away, or in a public house, highway, or any other public place," etc. The proof showed that one Winters was the proprietor of the house in which the playing at cards occurred. The bill of exceptions states that, "in response to a question by the state," the witness testified that from the time Winters moved there to July, 1889, "he [Winters] gave me a drink of whisky several times." The defendant objected to this statement, and moved to exclude it, but the court overruled the motion. As the card playing took place long after this period, we think the testimony was illegal and irrelevant, and the error would work a reversal but for another principle of law. The bill of exceptions states that the evidence was in response to a question of the state. There seems to have been no objection to the question, and a party cannot speculate as to what the answer of a witness may be to an improper question. If the answer is not responsive, he may move to exclude it; but where the question is illegal, and no objection is interposed, and the answer is responsive, the party against whom it is offered cannot, after it is answered, then object. The law will not permit him to wait until the witness answers, and if favorable get the benefit of it, and if prejudicial move to exclude it.
The court sustained an objection to the following question asked a witness by the defendant: "Wasn't the room spoken of by Bell [a witness previously examined] just a private bedroom?" This question is objectionable, as calling for a mere opinion or conclusion of the witness. The ruling of the court can be placed also upon other grounds. The witness Bell, referred to, and other witnesses, and also the evidence of the defendant himself, clearly...
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