Bailey v. State

133 Ala. 155 | Ala. | 1901

DOWDELL, J.

Sam Glass, a witness for the State, testified on his direct examination, that the killing of the deceased occurred on a Saturday night at a negro party or dance. Tins witness, after being cross-examined by the defense, upon further examination in rebuttal by the State, was permitted to testify, against the objection of the defendant, “that there was a negro gathering there that night.” It was competent to show in evidence all the facts and circumstances attending the killing. The facts, which the evidence on the part of the State tended to establish, rendered this evidence not only relevant but very material. The defendant and deceased were both white men and friends, and the defense set up, was that the shooting was accidental. The evidence on the part of the State tended to show a reckless firing of the gun by the defendant into a crowd of negroes, which resulted in killing the deceased, who was standing near the negroes. The evidence also tended to show that the defendant had had a difficulty that night with one of the negroes, and at the time he fired the gun said “there would be a negro less here to-night.” The court committed no error in the admission of the evidence.

In Jones v. State, 100 Ala. 88, it was' said that the expressions “to a moral certáinty,” and “beyond a reasonable doubt” are legal equivalents. A written charge to the jury in a criminal case.which predicates a conviction of the defendant, upon a belief to a moral certainty of his guilt, from the evidence, is the equivalent of one which predicates a conviction upon their belief beyond a reasonable doubt of defendant’s guilt from the evidence. There was no error in the giving of the charge requested by the State.

Charge No. 2 requested by the defendant was properly refused. There was evidence tending to show reckless firing of the gun into a crowd of negroes — the perpetration of an act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, which under our statutes constitutes murder in the first degree, although there was no preconceived purpose to deprive any particular person of life. It was not necessary to constitute murder in the second degree, for which the defendant was on trial, that he should have the specific intention to kill, at the time he fired the gun. — Nutt v. State, 63 Ala. 184.

We find no error in the record, and the judgment is affirmed.