It has many times been held that the trial judge has a discretion as to whether witnesses in criminal as well as civil cases shall be put under the rule. Where this discretion is not abused, appellate courts will not review such rulings. Webb v. State, 100 Ala. 47, 14 So. 865.
It is contended that the court erred in admitting testimony showing a trapdoor in the floor of the room where the whisky was found. No whisky having been found in the receptacle reached by the trapdoor, this testimony was immaterial; but no objection appears to have been made to the *Page 85 question calling for this testimony, and therefore the objection to the answer and motion to exclude came too late. Fearn v. State, (Ala.App.) 90 So. 37;1 Baxley v. State, (Ala.App.) 90 So. 434.2 Besides the testimony could not in any way have influenced the jury on the question of possession, for which defendant was being tried.
The whisky was found in a feed room in defendant's sale stable or barn, the door to which was locked. The state was permitted over proper objection and exception to prove that defendant told the officer making the search that the key to the lock on the feed room door was lost. The possession of the key to this lock had a direct bearing upon who was in possession of the feed room. If defendant had produced it such act might have shown his complete control of the feed room, and his explanation of why he did not produce it was relevant on the question of possession.
With reference to the remarks of the solicitor, objected to by defendant, it is sufficient to say: No motion to exclude the remarks was made, and under the decisions of this court and of the Supreme Court the L. P. Co. v. Gonzalez, 183 Ala. 273,61 South, 80, Ann. Cas. 1916A, 543; Montgomery v. State, 18 Ala. App. 213,91 So. 630.
We find no reversible error in the record, and the judgment is affirmed.
Affirmed.
MERRITT, J., not sitting.
1 18 Ala. App. 122.
2 18 Ala. App. 277.