44 So. 84 | Ala. | 1907
The defendant in this case was indicted for the crime of murder in the first degree, and was convicted of manslaughter in the first degree.
There was no error in the action of the court in overruling the motion to quash the indictment. The objections set forth are not such as can be raised. — Code 1896, § 5269; Rogers v. State, 144 Ala. 32, 40 South. 572; Shirley v. State, 144 Ala. 35, 40, South. 269.
There was no error in sustaining the objection of the state to the question to the witness Will Thomas as to how often he had seen Scott Davenport with a pistol. No explanation was offered as to how the fact sought would be connected, so as to make it material.
There was no error in overruling the' objection by defendant to the question, “Did he die with his hand in his bosom?” The witness had already stated that the deceased fell with his hand in his bosom, and no injury could accrue to the defendant by the testimony as to whether the hand remained in the same position till he
The threats made by the defendant about killing Scott Davenport were properly admitted as tending to show the state, of feeling between the parties. — Meyers v. State, 62 Ala. 599.
There was no error in overruling the motion to exclude the statement of the witness Mary Davenport as to the time when the threats were made against Scott Davenport by the defendant. It was not necessary to fix the time with exactness.
The objection by the state to the question to the witness Mary Davenport as to the particulars of the former difficulty was properly" sustained. — Sanford v. State, 143 Ala. 78, 39 South. 370, and cases cited.
The court ruled correctly in regard to the testimony of the witness Bush about threats made by deceased against defendant and communicated to him. It w"as proper to allow" testimony" as to wdiat the threats were, and that they" were communicated to the defendant; but the details of the conversation, including w"hat the witness said to said decedent and what advice he gave him, were properly" excluded. The witness testified to the threat and to the fact that he communicated the treat to the defendant. That was all that was revelant.
The objections to the questions to the witnesses Moon and Cosby in regard to the particulars of previous difficulties were properly sustained.
There was no error in sustaining the objections to the question to the witness Moon, “Did you hear people generally say that Scott Davenport had the reputation of shooting people?” That is not the proper way to prove character.
There was no error in sustaining the obection by the state to the question to the witness White as to whether
There Avas no error in overruling the objection to the remarks of the solicitor in argument.
The first and sixth charges, given by the court at the request of the solicitor, need not be considered, as the verdict was for manslaughter. — Mitchell v. State, 133 Ala. 65, 71, 32 South. 132; Evans v. State, 109 Ala. 12, 21, 19 South. 535; Harrison v. State, 144 Ala. 20, 28, 40 South. 568.
Charge- 2, given at the request- of the state, correctly states the law. — Evans v. State, 109 Ala. 12, 19 South. 535; Mitchell v. State, 133 Ala. 66, 32 South. 132; Harrison v. State, 144 Ala. 20, 40 South. 568.
Charge 3, given at the request of the state, is probably confusing; but the court cannot be placed in error for giving it.
Charge 4 Avas properly given at the request of the state. — Raines v. State, 40 South. 932, 934.
Charge 5 states the laAV correctly and Avas properly given. — Linchan v. State, 113 Ala. 72, 21 South. 497.
Charge 9, given at the request of the state, expresses the laAV correctly. — Little v. State, 89 Ala. 99, 8 South. 82.
There was no error in the refusal to give charge 6, requested by the defendant. It fails to hypothesize freedom from fault on the part of the defendant in bringing on the difficulty, besides being subject to other infirmities.
Charge 8, requested by the defendant, states the law correctly and should have been given. It ivas not liable to the criticism that it pretermitted one or more of the elements of self-defense, because it did not instruct the jury as to acquitting or convicting the defendant, but dealt merely with the duty to retreat.- — -Hammil's Case, 90 Ala. 577, 582, 8 South. 380; Deal v. State, 136 Ala. 52, 34 South. 23 (charge 12).
Charge 11, requested by the defendant, failed to hypothesize the belief of the defendant that he was in imminent peril, and was properly refused.
Charge 16, requested by the defendant, was faulty, in that it asserted as a fact that “the language and conduct of Scott Davenport, taken in connection with his previous threats, * * * are evidence that he, defendant,” was in danger. This Avas a matter for the jury to determine.
Charge 17 was property refused. Tt placed the burden on the state to sIioav that the defendant Avas free from fault and did not hypothesize the elements of self-defense.
Charges 21, 23, and 21 Avere properly refused, as they failed to hypothesize the defendant’s belief in the imminency of his peril or his freedom from fault.
Charges 25 and 31 Avere property refused, as they failed to hypothesize freedom from fault in bringing on the difficulty on the part- of defendant.
Charge 27 was properly refused. — Linehan's Case, supra.
Charge 29 wag misleading, as placing too great emphasis on the proof of character.
Charges 35 and 36 do not embody any instruction to the jury, but seek to bring to their attention certain evidence which had been excluded, and said charges were properly refused.
Charge A, requested by the defendant, was properly refused. “If the defendant would lessen Ms danger by retreating” embodies the very fact which places upon him the duty of retreating.
Charges B, C, D, and E were merely^ answers to the argument of the solicitor, and were properly refused.— Tribble v. The State, 145 Ala. 23, 40 South. 938; White v. State, 133 Ala. 122, 32 South. 139.
The judgment of the court is reversed, and the cause remanded.
Reversed and remanded.