RAYMOND v. POINTER

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Docket Number

7 Div. 26.

Attorney(S)

W. B. Raymond and John B. Isbell, both of Fort Payne, for appellant. The presence of a witness in a crowded courtroom for five or ten minutes is not sufficient reason for refusing his testimony. Chas. J. Scott, of Fort Payne, for appellees. It is within the discretion of the court to permit a witness who has not been under the rule or who has violated the rule to testify, and it is not reviewable unless abuse of discretion is shown. Sloss-Sheffield Steel Iron Co. v. Smith (Ala. Sup.) 40 So. 91; McClellan v. State, 117 Ala. 140, 23 So. 653; State v. Brookshire, 2 Ala. 303; Montgomery v. State, 40 Ala. 687; Hall v. State, 137 Ala. 44, 34 So. 680; Sidgreaves v. Myatt, 22 Ala. 617.

Judges

GARDNER, J.

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RAYMOND v. POINTER et al.

GARDNER, J.

The report of the case on former appeal (Raymond v. Pointer, 220 Ala. 593, 127 So. 153) discloses the nature of the suit, but no question there decided is now presented.

The sole assignment of error relates to the refusal of the court to permit defendant's witness Sizemore to testify for the reason that the rule had been invoked, and the witness had been present in the courtroom during the progress of the trial. Whether the evidence sought to be secured from this witness was merely cumulative is not made to appear, nor are the circumstances disclosed. This was a matter resting in the sound discretion of the trial court, and to work a reversal there must appear an abuse of this discretion. State v. Brookshire, 2 Ala. 303; Sloss-Sheffield Co. v. Smith (Ala. Sup.) 40 So. 91; McClellan v. State, 117 Ala. 140, 23 So. 653. The record discloses no such abuse.

Let the judgment be affirmed.

Affirmed.

ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.

RAYMOND v. POINTER et al.

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