54 So. 116 | Ala. | 1910
This case is appealed from the city court of Mobile. The appellant was there indicted for murder in the first degree. He was convicted as charged, and the penalty of death was imposed by the verdict of the jury and the judgment and sentence of the court. The record proper of the case shows that all matters, properly appearing thereon, were done in strict accordance with the law. The bill of exceptions presents several questions for review by this court.
Immediately after the case was called for trial, and before the impaneling of the jury was begun, counsel for the defendant called the attention of the court to certain depositions that he proposed to introduce in evidence upon the trial of the case. These so-called depositions had been received by defendant’s counsel through the mail on the day before the trial. On the envelope, in which the depositions were sent to defendant’s counsel, was indorsed “B. F. Ellis, Orville, Ala.” The said B. F. Ellis was not the commissioner apointed to take the depositions, but was one of the witnesses whose deposition was taken. In the envelope accompanying the depositions was the following letter: “March 10/10. Mr. J. B. Jenkins, Dear Sir: I enclose you herewith
Article 2 of chapter 308 of the Code of 1907 provides for the taking of depositions of witnesses in criminal cases, in certain contingencies. Section 7889 of said Code, being one of the sections under said article 2, is as follows: “Depositions taken under the provisions of one of the preceding sections are' governed by the same rules which are applicable to depositions taken in civil cases at law.” The rule as to depositions taken in civil cases at- law requires that “the deposition, when complete, must be by the commissioner enveloped, together with the commission and any document which may have been deposed to, sealed and directed to- the clerk of the court where the cause is pending, with the title of the cause indorsed thereon.” — Code 1907, § 4039. This rule was not followed in this case, but was entirely disregarded. It follows that the court properly suppressed the depositions on motion of the solicitor.
The state asked its witness Etta McGuire the following question : “ Did he (the defendant) and your mother have some trouble last spring?” The defendant objected to the question as calling for irrelevant, immaterial, incompetent, and illegal evidence. The court overruled the objection, and the defendant excepted. There was no error in the ruling of the court. It was perfectly legitimate for the state to prove malice or motive on the part of defendant, and the evidence sought to be elicited tended to show malice or motive. The answer to the question was to that effect.
On cross-examination of the same witness, the defendant asked the following question: “What other men came there to see her?” The state objected to
State’s witness Mamie Watts was asked by the state, “Was there any talk between John and Maggie .that night?” The defendant objected to the question upon the ground that it called for immaterial, irrelevant, incompetent, and illegal evidence. The court overruled the objection and defendant excepted. The answer of the witness shows that there was such a conversation, and that defendant then and there told deceased, “I will get you if it takes seven years.” As leading up to this threat on the part of defendant against deceased, the question was entirely proper. The same rule applies to the following questions asked its witness by the state: “Did he say anything to you'about visiting Maggie at the time?” and “What was that conversation?” The subsequent evidence shows that these were proper questions.
There was no error in the court’s sustaining the objection of the state to the following question asked by defendant of the state’s witness Joseph Knight on cross-examination: “You were turned out of jail two or three days before this, wern’t you?” The only possible purpose of the question was to discredit the witness, and the fact that he may have been in jail could not be considered for this purpose.
On cross-examination of defendant’s witness Mr. Farnell, the state asked him, “How long does it take for a man to walk from your store up to the Govern
Defendant’s said witness Farnell, having testified to the good character of defendant, was asked by the state on cross-examination, “Did you ever hear of his shooting a j fellow in Selma on account of a woman, and changing his name from John Chapman to John Bell?” and, also, “Did you' ever hear of his living on the Matthews-place on the Alabama road?” The court did not err in overruling the objections of defendant to these questions on cross-examination. The first of these questions was clearly proper as calling for evidence tending to contradict the evidence of good character as well as to test the knowledge that witness had of defendant’s character. The second of these questions was to test the knowledge of the witness as to defendant’s residence. On cross-examination of defendant’s witness there was nothing in either of these questions of which the defendant could legally complain. The knowledge of witness of where defendant had lived, and what he had been accused of doing, were matters of competent inquiry by the state on cross-examination,' after wit
Charge 2 asked by defendant and refused by the court was properly refused. The defendant was charged with murder in the first degree, and the charge limited the inquiry to that offense, while the defendant might have not been guilty “as charged,” and still have been convicted of murder in the second degree or any lesser offense comprehended thereunder.
Charges 4 and 6 were properly refused. “They are clearly subject to the vice that they give undue prominence to the proof of good character.”—Scott v. State, 105 Ala. 57, 16 South. 925, 53 Am. St. Rep. 100; Goldsmith v. State, 105 Ala. 8, 16 South. 933; Grant v. State, 97 Ala. 35, 11 South. 915.
Charge 10 refused to defendant was given in substantially the same language in charge 5 at the request of defendant.
Charge 14 requested by defendant was the, general affirmative charge for the acquittal of defendant. The evidence was ample for the jury to pass on the guilt or innocence of defendant.
Charge 18 given at the request of the state has been so often approved by this court that we deem it unnecessary to cite authorities.
Counsel for defendant, in his brief, discusses only one proposition; that is, that the court forced the defendant to trial without allowing him to have the benefit of the depositions of the witnesses Ellis and Fitzpatrick. He admits that the depositions were properly suppressed, but contends that the trial judge abused his discretion in forcing the defendant to trial without the testimony of these witnesses. It does not appear in the record proper, nor in the bill of exceptions, that a motion for a continuance was made upon any ground
The judgment of the lower court is affirmed.
Affirmed.
The day fixed by the trial court for the execution of the sentence having passed, this court now fixes Friday the 3rd day of February, 1911, as the day for the execution of said sentence.
