
    (86 South. 144)
    HARRIS v. STATE.
    (4 Div. 642.)
    (Court of Appeals of Alabama.
    June 29, 1920.)
    1. Witnesses @=>245 — Whether Repetition of Question should be Allowed Vested jn Discretion' of Court.
    In a prosecution for manufacturing prohibited liquors, it was in the discretion of the trial court to permit a witness to be asked a second time if defendant’s wife was washing or scouring when he got to defendant’s house.
    2. Criminal Law @=>696(5) — Motion to Exclude Testimony Properly Overruled, where Questions not Objected to.
    In a prosecution for manufacturing prohibited liquors, where a deputy sheriff testified that after defendant fled he went back to his house and destroyed a complete still, and thereafter the'state asked what he found there, and the sheriff answered, “A complete stilling outfit,” defendant’s motion to exclude such answer ivas properly overruled; it being already in without objection, and no objection having been made to the second question.
    3. Criminal _Law @=>656(2) — Court’s Remarks on Examination of Witness held Proper.
    In a prosecution for manufacturing prohibited liquors,, action of the trial judge, on question to a witness for the state, in asserting that he had answered and need not answer any more, and in questioning the witness as to what he would have testified to, heló within the judge’s province.
    4. Criminal Law @=419, 420(11) — Conversations between Sheriff and Defendant’s Wife Hearsay.
    In a prosecution for maufacturing prohibited liquors, evidence as to conversations between a witness, a deputy•> sheriff, and defendant’s wife was inadmissible as hearsay.
    5. Intoxicating Liquors @=>226 — Defendant’s Duty as to Slopping Another’s Hogs Immaterial.
    In a prosecution for manufacturing prohibited liquors, defendant’s duty in connection with slopping another person’s hogs was immaterial.
    É=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
    Walter -Harris was convicted of manufacturing prohibited liquors, and he appeals.
    Affirmed as to conviction,' and remanded improper sentence.
    Lee & Tompkins, of Dothan, for appellant.
    Counsel discuss the evidence and insist that under the Braxton Case, ante, p. 167, 82 South. 657, the corpus delicti was not made out. The action of the court in interrogating. the witness was improper, and-should work a reversal. 158 Ala. 539, 48 South. 553, 132 Am. St. Rep. 38.
    J. Q. Smith, Atty. Gen., for the State.
    No brief reached the Reporter.
   •MERRITT, J.

The defendant was indicted, tried, and convicted for making, manufacturing, or distilling alcoholic or spirituous liquors, subsequent to January 25, 1919.

It was in the discretion of the trial court to permit the witness Adams to be asked and to answer, a second time: “The woman (defendant’s wife) was washing or scouring when you got to defendant’s house? ” The witness Watford, a deputy sheriff, after stating that the defendant fled when he went to his home, and that he ran after him, wa's then asked by the solicitor: “Well, did you go back to this defendant’s house?” The witness answered: “Yes, sir; later on. We destroyed a complete still there.” The state asked the following question: “What did you find there?” The witness answered: “A complete stilling outfit.” The defendant moved to exclude the answer. The court did .not commit any reversible error in overruling the motion. The answer was already in without objection, and then no objection was made to the question which elicited the answer the second time. .

The witness Watford, on eross-exami- [ nation, stated that lie did not go out to the defendant’s home because one 'Sam Williams had informed him to do so, but that the sheriff gave him the information. When this question was asked again, the court said: “He answered that, and he need not answer that question any more.” The defendant excepted to the court’s statement that the witness was not to answer. Defendant’s counsel asked the question again, and stated to the court, that, if allowed to answer, the witness would state thaf Sam Williams brought the information that caused him to go out there. The court then said to the witness: “Will you make that statement?” And after some further colloquy between counsel and the state, the witness said: “No. If I was allowed to answer, I would not answer 'that Sam Williams brought the information which caused me to go out there.” It appears to us that defendant's counsel was under an honest misapprehension as to what the witness would say, because clearly from his answer every time he did not state what counsel seem to think his answer would be. We cannot agree with counsel that this action of the trial judge was prejudicial to the defendant. Coming just as it did, it may have been better left unsaid, but the trial judge was clearly in his province to question the witness, and we cannot think it was prejudicial to the defendant.

The objection by the state to the conversation between the witness Watford and defendant’s wife was properly sustained. This was hearsay, and otherwise objectionable.

It was clearly immaterial as to what defendant’s duty was in connection with attending to slopping John Mathis’ hogs, and the objection thereto was properly overruled.

There was no request on the part of the defendant for the affirmative charge, no motion was made to set aside the verdict and grant the defendant a new trial, and this cause is before us for consideration on the record, and on the ruling of the court on the introduction and exclusion of testimony; and, while defendant’s counsel insist that the corpus delicti was not proven, there appears to be no way that this question is presented for our consideration. However, we may not be impressed with the weight of the testimony in this case, yet there were sufficient facts and circumstances proven in this case from which the jury might legally infer that the offense had beeen committed.

The judgment of conviction is affirmed, but the case is remanded for proper sentence, as is provided under what is known as the Indeterminate Sentence Act. Acts 1919, p. 148.

Judgment of conviction affirmed; remanded for proper sentence.  