Ross v. State
| Decision Date | 11 February 1904 |
| Citation | 36 So. 718,139 Ala. 144 |
| Parties | ROSS v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Cullman County Court; S. L. Fuller, Judge.
Yance Ross was convicted of carrying a concealed weapon, and he appeals. Reversed.
The complaint was as follows: "Before me, S. L. Fuller judge of the county court of said county, personally appeared T. H. Hooten, who, being duly sworn, doth depose and say that he has probable cause for believing, and doth believe, that the offense of carrying a pistol concealed about his person has been committed in said county by Yance Ross, within the last twelve months, against the peace and dignity of the state of Alabama."
To this complaint, the defendant demurred upon the following grounds
The facts of the case relating to the rulings of the court upon the evidence, reviewed on the present appeal, are sufficiently shown in the opinion.
The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked:
Massey Wilson, Atty. Gen., for the State.
1. The affidavit for the arrest of the defendant, charging him with the commission of the offense therein named, seems to have followed the requirements of the Code of 1896 (section 4600) and was not subject to the demurrer interposed to it.
2. In the bill of exceptions reference is made to a motion to quash the affidavit on which defendant was tried, but no motion to this effect is set out in the transcript, and no question, therefore, as to the ruling of the court on the motion is presented for review. Wiggins v. Witherington, 96 Ala. 535, 11 So. 539.
3. The prosecutor had testified to facts tending to show the guilt of the defendant. The defendant introduced Ed Bright, who testified to the general character of the defendant, as a peaceable and law-abiding citizen, and that it was good. The witness was asked by counsel for defendant, "to go on and state what was said and done by Hooten [the prosecutor] and the defendant at the time" (the witness saw the defendant with a pistol concealed about his person). On objection of the solicitor, the court refused to allow the witness to answer. The record does not show what answer from the witness was expected, so that this court can pass intelligently on the ruling and we cannot, therefore, consider it. Tolbert v. State, 87 Ala. 27, 6 So. 284. Furthermore, the question was very general, so much so, that irrelevant evidence would have been responsive to it.
The other questions asked this witness by defendant,--"to state what Hooten said at that time," and "whether or not Hooten went and got a gun and came back with it, and what he said about killing defendant?"--call for evidence entirely irrelevant to the issue, as to whether defendant was carrying a pistol concealed about his person.
4. On the cross-examination of this witness, the solicitor asked him, "if they [defendant and the witness] had not been to a stillhouse that day, and whether or not they did not have a bottle of whisky with them, and whether they did not go to church in the neighborhood with the pistol in the buggy." Objection was interposed by defendant, that the question called for illegal,...
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