Bullington v. State, 69 So. 319

Bullington v. State

69 So. 319 | Ala. Ct. App. | 1915

BROWN, J.

The appellant was indicted for murder in the first degree for killing Walter Berry, was tried and convicted of manslaughter in the first degree, and sentenced to the penitentiary for a year and a day as a punishment for the offense, and appeals.

The killing occurred in the public road in front of the defendant’s mill, and the evidence offered by the state tended to show that, while Berry was traveling along the road passing by the mill, the defendant, who was watching, in ambush with others, shot him to death without provocation, while that on the part of the defendant tended to show that the deceased, while passing along the road by the defendant’s mill, discovered the defendant with a gun, and, using a vile epithet, called upon defendant to drop his gun, and at the same time acted as though he was drawing a pistol from concealment on his person, and the defendant shot him. The evidence showed that the deceased in fact was not armed, and indicates that the cause of the tragedy originated in a disagreement between the defendant and the deceased over the division of a crop' while the deceased was a tenant on the defendant’s farm, resulting in enmity between them, and as a result of this enmity the deceased had threatened the defendant’s life and been guilty of menacing conduct toward him, and through a spirit of fear or of retaliation the defendant waited his opportunity and killed the deceased while he was passing by the mill unarmed.

*66(1) The court did not-err in sustaining the objection of the solicitor to the question asked the state’s witness John Smith on cross-examination, eliciting testimony to the effect that defendant had made arrangements to go to Littleville that day. The witness had just, testified that he was with the defendant just before the shot was fired that killed the deceased, and that he, witness, knew that defendant was arranging to go to Littleville when he, witness, left the defendant.

(2) The witness Dennis Smith testified that he heard the report of the gun fired by the defendant at the deceased immediately after defendant left him and went under the gin house, and that the sound from the gun was “a kind of dead sound.” The witness also testified that he had heard shotguns often, and had heard lots of gunshots, and was competent to answer the question, “When a gun is shot in the open air, what kind of a sound does it make?” All persons are more or less familiar with the character of sound that results from firing a gun, and no peculiar skill or experience is required to qualify a witness to testify to such fact. One who has heard such sounds may describe them.—L. & N. R. R. Co. v. Sandlin, 125 Ala. 585, 28 South. 40; Underhill, Cr. Ev. § 334; Williams v. State, 147 Ala. 10, 41 South. 992.

The witness William Walter Berry was shown on the voir dire examination to be competent to testify as a witness, and his testimony was properly admitted.—Bone v. State, 8 Ala. App. 59, 62 South. 455.

(3) The fact that the father of the witness Alonzo Bozeman signed a bail bond for the deceased some time before he was killed was wholly immaterial to the issues in the case. It does not appear that the-witness was a member of the father’s, family, or otherwise under his domination, but tends to show that the. witness was him*67self the head of a household. Therefore the friendly relation of the father with the deceased would not show bias on the part of the witness.—McAlpine v. State, 117 Ala. 94, 23 South. 130.

(4) The fact that the witness and the deceased were friendly was material and admissible as a circumstance to show bias on the part of the witness, and the objection of the solicitor to the question, “Were not you and Berry, the deceased, very friendly” should have been overruled. The feeling, bias, and friendly relations of the witness toward either of the parties are never collateral facts.—Underhill on Cr. Ev. § 222; Cook v. State, 152 Ala. 66, 44 South. 549.

(5) However, in view of the great mass of evidence offered by the defendant impeaching the testimony of this witness and discrediting it, we are not of opinion that this ruling of the court injuriously affected the substantial rights of the defendant, and this error is not sufficient to work a reversal of the judgment of conviction. — Buie 45 (175 Ala. xxi, 61 South, ix).

(6) - The court ruled correctly in sustaining the solicitor’s objection to the question asked the witness -Davis Burlington, “What did you go over there for this morning?” A witness cannot testify to his undisclosed motives or intentions.—Fuller v. Whitlock, 99 Ala. 411, 13 South. 80.

(7) The court did not err in excluding the testimony of John- Cox, to the effect that the deceased stated to witness, “that he, deceased, had lost a year’s work on account of Bullington, and some morning they would get up and see a big pile of ashes.” This evidence did not embody a threat of violence to the defendant’s person, and afforded no justification for the killing, and could shed no light on it.

*68(8) The witness Kirkland had testified for the defendant that he knew the general character of the defendant in the comnmnifcy for peace and quiet, and that it was good. It was permissible for the solicitor on •cross-examination to ask him if he had not heard of defendants shooting at a man in the community a short time before the killing of deceased.—Hussey v. State, 87 Ala. 121, 6 South. 420.

In connection with the defendant’s testimony that the deceased, after commanding the. defendant to throw down his gun, made an overt hostile demonstration as if he was drawing a weapon, proof of the general character of the deceased as a violent, bloodthirsty, dangerous man was admissible as defensive matter, as tending to justify more prompt and decisive means of self-defense, but this doctrine cannot safely be extended to embrace mere quarrelsome and fighting characters, nor to allow proof of specific acts or declarations of the deceased.—Rhea v. State, 100 Ala. 119, 14 South. 853; Lang v. State, 81 Ala. 1, 4 South. 193, 5 Am. St. Rep. 324; Smith v. State, 88 Ala. 73, 7 South. 52; Davenport v. State, 85 Ala. 336, 5 South. 152; Roberts v. State, 68 Ala. 156; Perry v. State, 91 Ala. 25, 10 South. 650; Underhill, Cr. Ev. §§ 324, 325.

(10, 11) These rules justify the action of the court in refusing to allow the defendant to prove the declaration of the deceased that he had killed two men, and in sustaining the objection of the solicitor to the question asked the witness Ben Martin, “Was his reputation that of a peaceable, law-abiding man, or that of a quarrelsome, dangerous man?”

(12) Charg'e 1 is identically the same as charge 11, criticised in the case of Bone v. State, 8 Ala. App. 59, 62 South. 455, for using the word “same” where the word “things” should have been used, and we are now *69of the opinion that this defect justified the refusal of charge 4. The same principles of law which this charge undertook to assert were clearly given to the jury in given charges 38, 43, and D.

(13) Charge 21 was invasive of the province of the jury, and was argumentative.

(14) Charge 25 required too high a degree of proof, and was properly refused.

(15) Befused charge 31 is patently unsound, in that it required an acquittal on a false issue.

(16) Befused charge 42 in substance is identical with given charge 35, and was well refused, and is otherwise faulty.

(17, 18) Charges 47 and 49 were well refused.—Rhea v. State, supra.

The principle asserted in charge 62, refused to defendant, was covered by charge 61 given at his instance.

(19) Several witnesses testified in the case in behalf of the state to facts tending to show defendant’s guilt; therefore charge 66 was properly refused as emphasizing and pointing out the evidence of a single witness and ignoring the other evidence in the case.—Hubbard v. State, 10 Ala. App. 47, 64 South. 633.

(20, 21) Charge BM is elliptical, and was for this reason properly refused. This charge also possesses tendencies calculated- to mislead, in that it asserts “that if a man has been thréatened by another and he believed the deceased intended to take his life,” although the deceased had not threatened him.

When the general charge is construed as a whole, it correctly states the law, and is free from error.—Winter v. State, 132 Ala. 32, 31 South. 717.

No brief came to us for the appellant, but we have carefuly examined all questions presented, and find no reversible error in the record.

Affirmed.