Bone v. State

May 13, 1915

Reporters:: , ,
Before:: Thomas

THOMAS, J.

(1) Thе insistence of appellant’s counsel in brief that the court erred in admitting in evidence the testimony of John Richardson is without merit, in the face of the recital in the record that the witness was. dead, аnd that his testimony, as offered by the state and allowed in evidence by the court, was the testimony of the witness as given on the former trial.

(2) The state proved by the witness Walker a threat made by defendant against deceased at the conclusion of a former difficulty between them, when defendant, upon separating at that time from dеceased, said, as he was leaving: “I will get even with ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍you.” The defendаnt on cross-examination’ then asked the witness if, in that former difficulty, deceased did not call defendant “a d-son of a b-.” An objection wаs sustained to the question, and the witness ‘was not permitted to answer it.

While we are clear in the opinion that it called for inadmissible details of a former difficulty, yet, assuming the contrary, as contended in brief, it is not shown by the record that the defendant Avas in any Avise injured by the refusаl of the court- to allow the Avitness to ansAver the question; since it is not shown Avhat the ansAver of the witness would have been if he had been рermitted to answer the question. For aught we know, it .Avould have been a negative answer — that is, that deceased did not call defendаnt “a d-son of a b-” in the former difficulty. If so, defendant certainly was not injurеd by the court’s refusal to, allow the witness to answer the question. Under thе neAV rule adopted by the Supreme Court, which governs this court, an аppellant, to secure a reversal, must not only show error in thе record, but such error as that we can say it “prob*9ably injuriously affected” the case. — Rule 45 (175 Ala. xxi, 61 South, ix).

What we havе said disposes also of the assignment of error predicated on the action of the court in sustaining the state’s objection to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍defendant’s question to the witness Turner, which called for all that was sаid between defendant and deceased in the former difficulty.

A greаt many special charges were given at defendant’s request — 28 in аll — covering practically every phase and aspect of the case, in a way really more favorable to defеndant than he had a right to require. Several special charges were refused, but it is only insisted in brief that those of them numbered, respeсtively, 1, 2, 6, 8, 9, 10, and 11 should have been given. We shall therefore confine ourselves to a discussion of these, all of which, as well as those nоt discussed, were, in our opinion, properly refused.

(3) Charges 1, 9, and 10, whiсh are similar, are each misleading in part, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍abstract in part, and argumentative in toto. —1 Mayf. Dig. 173, § 18.

(4) Charge 2, besides being argumentative, has the vice of assuming defendant’s’ freedom from fault in bringing on the difficulty.

(5) Charge 6 rеfers to the jury a question of law, in failing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to define or set forth the elеments of self-defense.—McGhee v. State, 178 Ala. 12, 59 South. 573.

(6, 7) Charge 8 is palpably bad. The facts hypothesizеd do not, as a matter of law, constitute an entire freedom from fault in bringing on the difficulty. As to-whether defendant, in returning, under the circumstancеs mentioned, to the scene of the former difficulty, where he knew deceased was, was entirely free from fault,.was a question for the jury, and not the court.

*10(8) Charge 11 asserts or assumes that prior threats had been made by deceased against defendant, and had ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍beеn communicated to defendant prior to the fatal difficulty. This was a question for the jury.

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

Affirmed.

Brown, J., not sitting.