Bennefield v. The State

Bennefield v. The State. Prosecution for Selling or Giving Whislcey to Minor. 1. Giving whishey to minor; competency of witness. — On a trial in a prosecution for selling or giving spirituous, vinous or malt liquor to a minor, where it appears that the prosecution was commenced by an affidavit made Dy the minor to whom the whiskey is alleged’ to have been given, and in the examination of said minor as a witness he testified to] the defendant having given him a drink of whiskey at his house, and upon his cross-examination said witness testified that he and the defendant were on friendly terms, it is competent for the defendant, on the further cross-examination of said witness, to ask him “what is the feeling of your father towards the defendant, friendly or umriendly?” Appeal from tbe County Court of Cleburne. Tried before tbe Hon. T. J. Burton. Tbe 'prosecution in this case against tbe appellant, Charles Bennefield, was commenced by an affidavit made by Marvin Farlow, which charged that the defendant “did sell or give spiritous, vinous or malt liquors to Marvin Farlow, a minor,” etc. On the trial of the case, Marvin Farlow testified that he was 17 years old; that a. short while before he made the affidavit under which this prosecution Avas commenced, the defendant gave him, AAdiilo he Avas at the defendant’s house, a drink of Avhiskey. Upon the cross examination of said Farlow, and after he had testified that his feellings tOAvards the defendant Avero friendly, he Avas asked tin:: folloiving question: “What is the feeling of your father tOAvards the defendant, friendly or unfriendly?” The State objected to this question, the court sustained the objection, and the defendant duly excepted. The ruling upon this question constitutes the only question presented on the present appeal. From a judgment of conviction the defendant appeals. Merrill & Merrill, for appellant. A prosecuting minor Avitness should be permitted to testify Avhether or not the feelings of his father are friendly or unfriendly to defendant. — Lodge v. State, 122 Ala. 97. Chas. G. Broavn, Attorney-General, for the State. [MAJORITY — McCLELLAN, C. J.] McCLELLAN, C. J. On the authority of Lodge v. The State, 122 Ala. 97, il must be held that the trial court erred in sustaining the solicitor’s objection to the question: “What is the feeling of your father tOAvards the defendant, friendly or unfriendly?” propounded by defendant to the State’s Avitness Marvin FarloAv, the Avitness being a minor. The charge Avas giving Avhiskey to this minor, and he Avas the only Avitness for the State on the trial. He testified that he himself Avas friendly to the defendant, and yet he made the affidavit for the warrant against the defendant, charging him with a crime for an act Avhich seems to have been one of mere hospitality in defendant’s own house. The defendant himself was the only witness in his behalf, and he positively denied giving the witness any whiskey at any time. The case seemct to illustrate the soundness of the doctrine declared, in Lodge’s Case and to- call for its application here. Beversed and remanded.