Barlew v. State

57 So. 601 | Ala. Ct. App. | 1912

PELHAM, J. —

The appellant’s motion to establish a bill of exceptions in this case is not contested, and the motion is granted, and the bill of exceptions made a part of the record. The defendant was tried on an indictment charging murder in the second degree, and convicted of that degree of murder.

No evidence up to that time having been offered to show an element of self-defense attending the killing, tlie court properly refused to let the defendant show, by cross-examination of the state’s witness Martin, the character of the deceased for being a quarrelsome, violent, and turbulent man. — Gilmore v. State, 141 Ala. 51, 37 South. 359; Morrell v. State, 136 Ala. 44, 34 South. 208; Gafford v. State, 122 Ala. 54 South. 10; Rutledge v. State, 88 Ala. 85, 7 South. 335; Roberts v. State, 68 Ala. 156; Payne v. State, 60 Ala. 80; Eiland v. State, 52 Ala. 322; Franklin v. State, 29 Ala. 15; Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250; Queenaberry v. State, 3 Stew. & P. 308.

There was no error committed by the court in allowing the witness Martin to testify that there were powder burns on the face of the deceased. The witness showed that he had knowledge of and experience in the use of powder, and whether a witness possesses the necessary qualifications to testify as an expert is a preliminary question largely within the discretion of the court. — Tesney v. State, 77 Ala. 33; L. & N. R. R. Co. v. Sandlin, 125 Ala. 585, 28 South. 40.

The evidence sought to be elicited from the witness Underwood with reference to what took place between the witness and deceased at a different place and prior to the difficulty that resulted in the homicide called for the conclusion of the witness. If the evidence was relevant, as being matters connected with the transaction, the witness should not have been asked what he endeavored to do, or what the defendant was trying to do, or what it appeared to him (witness) the defendant was trying to do, but should have been asked what was done, so that the jury could draw the conclusions from the facts as to whether from what was done the witness endeavored to prevent the deceased from going back to town, or that the defendant was trying to pull away from deceased, or that it appeared, that defendant was not trying to get away from deceased. The questions asked called for the mere conclusions or opinions of the witness, and were properly refused. — Knight’s Case, 160 Ala. 58, 19 South. 764; Bettis’ Case, 160 Ala. 8, 49 South. 781; Heninburg’s Case, 153 Ala. 13, 45 South. 246; Weaver v. State, 1 Ala. App. 48, 55 South. 956.

The objections to the question asked the witness Mrs. Orange about her son John Orange having a pistol before the difficulty, and what he said at that time, Avere properly sustained. John Orange was not shoAvn to have taken any part in the fatal difficulty, and it was entirely immaterial Avhat he said and Avhether he had a pistol prior to the difficulty. The defendant subsequently examined John Orange as a witness in his behalf, and received the full benefit of all that this party did preceding the difficulty. The trial court alloAved a wide range to the defendant in examining this Avitness, permitting him to show what the witness believed in reference to the defendant’s having some of his money, and the purpose that he and the deceased had in looking for the defendant prior to the encounter.

The court correctly refused to allow the defendant to show by his witness Mrs. Orange her uncommunicated purpose in going to the house of the defendant a short time before the difficulty, and the questions, “What did you do there?” “What did you say there?” were capable and calculated to elicit incompetent and inadmissible evidence as responsive to the question and a general objection Avas properly sustained. — Ross’ Case, 139 Ala. 144, 36 South. 718; Braham’s Case, 143 Ala. 28, 40, 38 South. 919.

Even if uncommunicated threats Avould be competent evidence, as tending to shoAV the animus of the attack', and eAren though the caution sought to be proven by this witness as having been given to defendant’s wife be cons trued as a threat, or growing ont of threats, still it would, not be competent to prove that the witness told the defendant’s wife about the threats, in the absence of any evidence going to show that the threats were communicated. No' communicated threats were proven that the evidence could be corroborative of, and the court was not in error in sustaining objections to the questions.— Webb v. State, 135 Ala. 36, 33 South. 487.

There was nothing prejudicial to defendant in not being allowed to show the mere fact that defendant was or was not at the house when the witness went there.

The question asked this Avitness, “Mrs. Orange, you were expecting to hear those shots, Avere you not?” was leading and suggestive, and called for the Avitness’ undisclosed condition of mind.

The further examination of the Avitness Win go on matters not in rebuttal upon being recalled by defendant after the evidence AAras closed was in the discretion of the trial court, and no abuse of the discretion is shown. — Dyer v. State, 88 Ala. 225, 7 South. 267; Granison, v. State, 117 Ala. 22, 23 South. 146; W. U. Tel Co. v. Bowman, 141 Ala. 175, 37 South. 493; Braham v. State, 143 Ala. 28, 44, 38 South. 919; Cross v. State, 147 Ala. 125, 41 South. 875; McBride v. Sullivan, 155 Ala. 166, 45 South. 902.

That part of the oral charge set out in the bill of exceptions urged by appellant in brief as constituting error is not shown to have been objected to or any exception reserved thereto, and is not therefore before us for consideration.

Charge No 1, requested by the defendant and refused, ignores the question of freedom from fault and duty to retreat.

Charge No. 2 is faulty in not including the elements of imminent dangerand duty to retreat.

Charge No 3 is erroneous in stating that threats alone could put defendant in imminent danger.

Charge No 4 predicates only danger, and not imminent or impending danger, and fails to include the duty to retreat.

The action of the court in having a verdict defective in form corrected was free from error. — Higginbotham & Co. v. Clayton & Webb, 80 Ala. 194; Hughes v. State, 12 Ala. 458.

The motion in arrest of judgment is not set out in the record proper, but only appears in the bill of exceptions, and the rulings thereon are not reviewable.— Taylor v. State, 112 Ala. 69, 20 South. 848; Hampton v. State, 133 Ala. 180, 32 South. 230.

No reversible error available to appellant being shown by the record, the case will be affirmed.

Affirmed.