The indictment in this case was in two counts, charging, first, the manufacture of prohibited liquor, and, second, the possession of a still. The jury returned a verdict of guilty under the second count.
When arrested defendant was in the woods in the act of digging a hole which, it was testified, was suitable for the placing of a still furnace. In different directions and at varying distances from this hole the parts of a still and a barrel containing alcoholic beer were found, concealed by bushes. The defendant offered no evidence in contradiction of these facts or in denial of the charge.
A witness for the state, the sheriff, testified that he was present when defendant was arraigned on preliminary and heard him plead to the charge. Defendant's counsel at this point interrupted the examination, stating that he wished to cross-examine the witness and to offer witnesses to prove that defendant was deaf and partially blind. The court denied the right to cross-examine or to make the proof offered, but stated that this could be done later. To the question then *Page 347 asked the witness, "Well, was his plea guilty?" defendant objected upon the ground that defendant was not shown to have been in court represented by counsel, and that he understood the nature of the charge to which he was pleading. The court overruled this objection, but stated to the solicitor that it would be necessary to prove that defendant was in court, arraigned on the charge, and pleaded to it. The witness then testified that defendant was in the inferior court of Athens, Ala., was arraigned before Judge Clem, the judge of that court, upon the identical charge, and was asked by the judge whether he was guilty or not guilty. Thereupon the witness was asked: "What was the reply?" Over further objection the witness answered: "He pleaded guilty." Thereafter the state's witness Clem testified that defendant was arraigned before him on the identical charge; that witness read the complaint, containing two counts, to the defendant, and asked defendant if he was guilty or not guilty; that defendant said he was guilty; that witness then asked defendant if he meant to plead guilty of making whisky and having in possession a still; and that defendant replied: "Yes, sir." On cross-examination witness Clem testified that when this plea was entered the defendant was sitting about six feet from witness and that witness "spoke to him about as loud as I am speaking now." To the question whether or not defendant heard and understood the witness, the witness replied: "Well, I could not say except from what he said. He answered my question."
There was no error in declining to permit defendant to interrupt the direct examination of the witness for the purpose of cross-examination. Even if so, however, any error was rendered harmless by the requirement of the preliminary proof on the part of the state pointed out in defendant's objection. Defendant's proffered evidence of deficiency in sight and hearing was rebuttal in character and was properly deferred until the witness had given the testimony sought to be rebutted. Thereafter defendant was permitted to offer proof that he was deaf and partially blind and that in pleading in the inferior court he understood the judge to ask if he was digging a hole. Nor did the court err in admitting the plea of guilty made upon the preliminary hearing of defendant upon the identical charge. Bibb v. State, 3 So. 711, 83 Ala. 84; Seaborn and Jim v. State, 20 Ala. 15; Loman v. State, 99 So. 769,19 Ala. App. 611.
On the examination of the defendant's wife as a witness she was asked if defendant was ignorant, if he was illiterate, and if he had ever gone to school. The state's objections to these questions were sustained. In this there was no error. Apart from the plea of guilty in the inferior court, there was sufficient evidence, wholly uncontroverted, to justify the verdict.
We have said enough to indicate that the defendant was not entitled to the affirmative charge. Some of defendant's requested charges were refused and their refusal is assigned as error. We have carefully examined these charges; those given for defendant and the general charge of the court. The refused charges were fairly and substantially covered by given charges and the general charge. Indeed, defendant had more in the way of instruction than he was entitled to.
Finding no prejudicial error, the judgment will be affirmed.
Affirmed.