| Ala. | Apr 22, 1909
The defendant was convicted of murder in the second degree. According to the theory of the prosecution, the deceased was shot, with a pistol 'without semblance of justification or excuse. According to the theory of the defense, the defendant entered á room of the house of Mandy Danbv, in which the deceased then was, having in her (defendant’s,) hand a pistol; that Mandy Danby and deceased immediately grabbed her, Mandy secured the pistol, and began beat
Mandy Danby was introduced by the prosecution, and the tendency of her testimony has been indicated. Several witnesses for the defendant testified to statements in reference to the circumstances of the tragedy contradictory of her testimony on this trial; but none of these alleged contradictory statements related to the witness’ testimony on the preliminary trial. The state recalled Mandy Danby in rebuttal, and propounded to her this question: “Did you not testify as a witness on the preliminary trial of Emma Bennett, and make the same statements on that trial that you have made on this trial?” The objection by the defendant to this question should have been sustained. — Smith v. State, 103 Ala. 40" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/smith-v-state-6515655?utm_source=webapp" opinion_id="6515655">103 Ala. 40, 16 South. 12. The only purpose for such an inquiry was to corroborate the witness in her testimony given on the trial then in progress. The principle involved cannot be distinguished from those cases where other witnesses are called to so corroborate the witness by evidence of consistent statements, and evidence of that character has been condemned by this court. — Green v. State, 96 Ala. 29" court="Ala." date_filed="1892-11-15" href="https://app.midpage.ai/document/green-v-state-6514741?utm_source=webapp" opinion_id="6514741">96 Ala. 29, 11 South. 478] Jomes v. State, 115 Ala. 83" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/james-v-state-6517169?utm_source=webapp" opinion_id="6517169">115 Ala. 83, 22 South. 565. The allowance of the question quoted was error. For like reason, the motion to exclude the answer to the question was erroneously overruled.
The question, addressed to the witness Davidson, predicated upon the situation of the parties as described by Mandy Danby to the witness “at the time of the shooting” called for a mere conclusion of the witness and was properly disallowed.
Charge 2, requested by the defendant, was properly refused on the ground that it hypothesizes that Dauby rushed on defendant, whereas there was no evidence of just such an act; the evidence being that defendant was grabbed by Mandy Danby. With this exception, the charge appears to be well framed for this particular case.
Charge 3 was rendered subject to proper refusal by reason of the fact that the killing of the defendant is hypothesized in the last line thereof.
For the errors indicated, the judgment is reversed, and the cause is remanded.
.Reversed and remanded.