
    (103 So. 916)
    MILLER v. STATE.
    (6 Div. 468.)
    (Court of Appeals of Alabama.
    March 17, 1925.
    On Rehearing, April 14, 1925.)
    1. Criminal law &wkey;>753(2)—Material question of fact is for jury under conflicting evidence.
    Where there is material question of fact on which evidence is in direct conflict, affirmative charge must be refused.
    2. Criminal law &wkey;>600(4)—Showing of what absent witness would testify may be rebutted.
    Showing of what material witness for defendant would testify, if present, tending to contradict testimony of state’s witness, could be properly rebutted, by reintroducing state’s witness, as the showing of what absent witness would testify, if present, would be no more conclusive or credible than his oral testimony, and the admission, to prevent continuance, of what an absent witness would swear to is not an admission of the truth of the facts to which he would testify.
    3. Criminal law &wkey;>!056(l) — Objections to charge to jury not considered in absence of exceptions.
    Objections to oral charge to jury cannot be considered in absence of duly reserved excep-tions.
    4. Criminal law <&wkey;829(l)—Trial court has no duty to repeat requested charges which had fairly and substantially been covered by oral charge.
    Trial court has no duty to give requested charges which were fairly and substantially covered by oral charge.
    
      On Rehearing.
    5. Criminal law <S&wkey;786(3)—Instruction that jury “are to consider” testimony of accused in light of his interest in result held error.
    Instruction to jury that they “are to consider” testimony of accused “in the light of the fact that he is the defendant and interested in the result of your verdict” held error, as jury may consider such fact, but is not required to.
    Appeal from Circuit Court, Blount County; O. A. Steele, Judge.
    Foy Miller was convicted of manufacturing whisky, and he appeals.
    Reversed and remanded on rehearing.
    Ward, Nash & Fendley, of Oneonta, for appellant.
    The credence to he given the defendant’s testimony when he elects to testify should be left with the jury, unembarrassed by instructions of the court. I-Iembree v. State, ante, p. 181. 101 So. 221; Green v. State, 19 Ala. App. 239, 96 So. 651; Adams v. State, 16 Ala. App. 93, 75 So. 641; Swain v. State; 8 Ala. App. 26, 62 So. 446; Tucker v. State, 167 Ala. 1, 52 So. 464. Requested charges, stating correct propositions of law, should be given, unless covered by the oral charge or charges given. Ballentine v. State, 19 Ala. App. 261, 96 So. 733; Cannon v. State, 17 Ala. App. 82, 81 So. 860; Hanson v. State, 19 Ala. App. 249, 96 So. 655; Guin v. State, 19 Ala. App. 67, 94 So. 788; Moon v. State, 19 Ala. App. 176, 95 So. 830.
    Harwell G. Davis, Atty. Gen., and Lamar Field, Asst, Atty. Gen., for the State.
    Where defendant brings out a part of a conversation, the state is entitled to bring out the whole. Montgomery v. State, 17 Ala. App. 469, 96 So. 132. The instruction of the court was without error. Thornton v. State, 18 Ala. App. 225, 90 So. 66.
   BRICKEN, P. J.

The material question of fact in this case was the identity of the man who state witness Morris testified he saw at the stiU in question. On this question the evidence as to whether it was the defendant or not was in direct conflict, and was therefore for the determination of the jury. The affirmative charge requested by defendant was properly refused.

It appears but one ruling of the court was invoked upon the admission of testimony, and it is insisted that the exception reserved in this connection should effect a reversal of the judgment appealed from. One Ed Bynum, a material witness for defendant, was absent, and a showing as to what said witness would testify to, if present, was allowed defendant. The showing related to a purported conversation between Bynum and state witness Morris, in which the details of the alleged conversation were given, and tended to contradict the testimony of witness Morris upon the pending trial. Over the objection and exception of defendant the state was allowed to rebut said showing by introducing Morris again for that purpose, and this defendant insists could not be done. That there is no merit in this contention is manifest. The rule is the written showing, or statement, of what an absent witness would testify, if-present, when accepted in lieu of the witness, must have the same force, so far as credibility is concerned, as the oral statement of the witness would have. Where an application is made for a continuance on account of the absence of a material witness, and the adverse party admits that the witness, if present in court, would swear to the facts stated in the showing, this is not an admission that the facts stated are true, and the evidence thus adduced may be controverted or rebutted under the usual rules of evidence.

It is next insisted in propositions 2, 3, and 4 that in the oral charge to the jury the court invaded the province of the jury in several specific statements. We fail to note any exception to the oral charge, and in the absence of such exception duly reserved the questions are not presented. Appellant’s insistence here cannot be sustained.'

Refused charges 1, 2, and 3 were affirmative in their nature, and as hereinabove stated the defendant was not entitled to these charges; -the evidence being in conflict, and that offered by the. state was ample, if believed to be true under the required rules, to justify the verdict rendered, and to sustain the judgment of conviction.

The remaining refused charges, where properly stating the law, were fairly and substantially covered by the oral charge of the court or by charges given at request of defendant. Where this is true, the court is under no duty to again give such charges.

The record is without error. Let the judgment of conviction appealed from stand affirmed.

Affirmed.

On Rehearing.

In the foregoing opinion we stated that the several insistences of error predicated upon the court’s oral charge were not presented for consideration, as no exceptions thereto were shown to have been reserved. In this we - were mistaken, which mistake was due to the unusual manner of the preparation of the transcript. As a matter of fact exceptions were duly reserved to several excerpts of the court’s oral charge. One of these exceptions must prevail, on account of the mandatory instructions given by the court that the jury “are to consider” the testimony of defendant “in the light of the fact he is the defendant and interested in the result of your verdict.” The instructions of this character many times approved are to' the effect that the jury “may” (and not must) so consider the testimony of defendant. This exact question has been considered and decided by this' court in the case of Sam Mann v. State, 103 So. 604 (opinion by Samford, J.). See, also, Thornton v. State, 18 Ala. App. 225, 90 So. 66. Upon authority of that case the application for rehearing, here made, is granted. The affirmance of the cause is set aside, and the judgment appealed from is reversed and' cause remanded.

Application granted.

Reversed and remanded. 
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       Ante, p. 540.
     