145 So. 165 | Ala. Ct. App. | 1932
Appellant was convicted of the offense of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for the term of five years.
It was shown that he shot and killed one Emory Cowart in the course of a fight, involving Charles Cowart, a brother of the deceased, and one Croft Able, besides deceased and appellant. As the case must be retried, we have deemed it unwise to discuss in any way the testimony, other than is necessary to make clear the few holdings we shall declare.
There was no error in sustaining the state's demurrer to appellant's plea in abatement. He being indicted under the name "Herbert Bozeman," it was immaterial that his true name was "Herbert L. Bozeman." Taylor v. State,
As quoted by this court, from an opinion by the Supreme Court, in the case of Hardeman v. State,
In the light of the above quotation from our opinion in the case of Hardeman v. State, there cited, we are constrained to hold, and do hold, that there was no error in the rulings excepted to, allowing testimony as to what passed between appellant and Charles *283
Cowart immediately, or almost immediately, after the shooting of deceased by appellant. And see Smith v. State,
While appellant, who was testifying as a witness for himself, was being cross-examined, the solicitor made to him, and the court and jury this statement: "This is the second man you have killed?" True, in the record sent up here, a question mark follows the statement ("question") as we have indicated; and perhaps we may assume, though we are not so sure of that, that the "statement" quoted was put to the witness (appellant) with a "rising inflection" at its close, thereby indicating that it was a question, not a statement. But this involves unauthorized speculation on our part, and, besides, would not, we believe, change the applicable principle of law.
Upon appellant's timely objection to the quoted statement ("question"), the learned trial judge promptly sustained said objection, admonishing the jury not to consider same, etc. Said learned trial judge realized the poisonous nature of the said illegal question, and took decisive measures, only short of rebuking the solicitor for asking same, to eradicate the poison. But he overruled and denied appellant's motion to "withdraw the case from the jury (thereby declaring a mistrial) and continue it." And in this action he in our opinion, and we hold, erred. Watts v. Espy,
As said by Mr. Chief Justice Anderson, for our Supreme Court, in the opinion in the recent case of Pryor et al. v. Limestone County,
And in the case of Simon v. State,
The case appears to have been, in the main, well and ably tried.
The other questions apparent, which seem, though we do not so decide, to involve no erroneous ruling, will not likely arise, in their present form, at least, upon another trial. They will not be considered.
For the error pointed out, the judgment of conviction is reversed, and the cause remanded.
Reversed and remanded.