136 Ala. 9 | Ala. | 1902
The objection to the evidence of the witness, Davidson, was general and to the whole of it in mass. If any of 'it was good, as some of it evidently was, the objection ivas bad. — Caddell v. State, 129 Ala. 57. But there appears to have been no exception reserved to the ruling admitting it.
That there was no error in admitting the warrant sworn out by deceased -against defendant and Mrs. Gardner, for living in adultery, was decided on the former appeal.
A witness who saw the killing testified, that just before the killing, defendant called Mrs. Gardner out of the room where the shooting occurred, and whispered to her a few words in a short excited tone, when Mrs. Gardner returned to the room where deceased was, and shot hex’, after deceased asked her, if a certain garment was hers. He further stated, that defendant came running iixto the room with his hands up, saying, “Oh Lillie! Oh Lillie! What have you done!” and went to Mrs. Gardner, who by that time had fallen on the floor, and kissing her cheeks, started to go out of the back door of the house, when the witness said to the officer in defendant’s presence, “Hold him or kill him.” To this remark defendant excepted. We find no error here. It was just at the time of the killing, and was a part of the res gestae of his attempted flight, tending to show consciousness of guilt on his paid.
There ivas no error in the refusal of the court to allow the defendant to prove that Mrs. Gardner was, at the time of the trial, an inmate of the Insane Hospi-
The part of the oral charge of the court in respect to reasonable doubt, was calculated to confuse and mislead, but its giving, on that account, was not reversible error. — Avery v. State, 124 Ala. 20; Cawley v. State, 133 Ala. 130. Nor was there error in charging that conspiracy need not he proved by direct evidence.
Affi fined.