# McDonald v. State

> Alabama Court of Appeals · November 24, 1925 · 21 Ala. App. 254

URL: https://www.frixlaw.com/law-library/cases/9825342

## Case

- **Full name:** McDonald v. State.
- **Court:** Alabama Court of Appeals
- **Decided:** November 24, 1925
- **Citations:** 21 Ala. App. 254; 107 So. 223; 1925 Ala. App. LEXIS 358
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Bricken
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9825342

## Opinion text

On Rehearing.
In the application for rehearing our attention is directed, for the first time, to the ruling of the court, wherein the court allowed the state to .prove by one Bowden, the sheriff Of the county, that he (the sheriff) did swear out the affidavit upon which the prosecution of this appellant was based, and that he remembered the time when the defendant, Will Manning, Will Neville, and Will Brown were said to have a keg of whisky near Mr. Rawls’ crossing; and said affidavit of the sheriff in the county court was admitted in evidence as a part of the state’s case; all this, over the insistent and strenuous objections of defendant, who duly and legally reserved exceptions to the court’s rulings in this connection. In these rulings the court committed error to a reversal. The affidavit made by Bowden was not and could not be evidence in the case. Not even an indictment preferred by a grand jury can be taken as evidence in any case, and the paper here introduced, over the objection of defendant, was immaterial for any purpose; it was irrelevant also, and its admission in evidence as such was illegal. Moreover, it was injurious to the _ substantial rights of the defendant, in that it burdened the defendant’s case with the sworn opinion of a person, not a witness to the facts in issue, that there was probable cause for believing that the defendant was guilty of the offense upon which he was then on trial. In the case of Moseley v. State, 99 So. 657 , 19 Ala. App. 588 , this court passed upon an identical ruling to the one here complained of, and held that it was reversible error to allow such paper in evidence over the objection and exception of defendant.
Other questions are presented in the application for rehearing. They will probably not arise again upon another trial.
Application granted. Reversed and remanded.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9825342. Public record. Not legal advice.