Clark v. State, 91 So. 328

MERRITT, J.

The appellant was indicted for murder in the first degree, was convicted of murder in the second degree, and sentenced to the penitentiary for a term of 15 years.

[1, 2] In the examination of several witnesses, the solicitor, over the objection оf the defendant, was permitted to show that the defendant just before the shooting had his pistol concealed, and that it was not open to view. The objections made to these questions were general, and motions to exclude the answer were predicated on general grounds. The appellant insists that by this testimony the state invoked the provisions of section 7080 of thе Code, which makes it murder in the second degree where the killing in any sudden rencounter or affray is caused by the assailant by the usе of a deadly weapon which was concealed before the commencement ..of the fight, his adversary having no dеadly weapon drawn. There is nothing in the record to indicate that such W the intention of the state in eliciting such testimony, and, whether the state was seeking to have a conviction under either of the offenses embraced in the indictment, it was compеtent to show the facts above -enumerated as a part of the res gestae. There is nothing in the court’s oral charge or the givеn or refused charges which indicates that this section of the Code, or the aspect of the case as now presented, was even called to the attention of the court, jury, or any one connected with the trial of the case. ‍​​‌​​‌‌‌​‌‌​‌​‌‌​‌​​​​‌‌​​‌​​​‌‌‌‌​​‌​‌‌‌‌​​​​​​‍Morеover the defendant testified without objection when being examined in his own behalf that he had not shown his pistol up to the time he shot, and he cannot complain of the improper admission of testimony where he himself testified to the same facts. Swain v. Stаte, 8 Ala. App. 26, 62 South. 446; Ragland v. State. 178 Ala. 59, 59 South. 637; Chestnut v. State, 7 Ala. App. 72, 61 South. 609; 4 Michie Dig. p. 575.

[3] On redirect examination the witness Howard Andrews stated that he had a conversation with the defendant on Friday morning beforе the shooting on Saturday. The solicitor then asked the witness : “What did he tell you?” Over the objection of the ‘defendant the witness answered he was up at Ballard’s (deceased’s) the night before to see him about some cows, and they got up a row, and Ballаrd jumped at him, and took his gun away from him, and told him he would wear him out if he didn’t go on and leave him alone; that Ballard could not come down there that morning and do him that way again. It is sufficient to say in regard to the objections and motion to exclude the answer that they were general objections, and as such insufficient.

[4-7] That the defendant entertained ill will towards the deceased, and made a threat against deceased, was admissible, and a mere general objection is unavailing unless all of the conversation was inadmissible. Roden v. State, 13 Ala. App. 105, 69 South. 366; West v. State, 7 Ala. App. 145, 62 South. 290, 13 Michie, p. 718. Moreover, if the grounds of objection were good, ‘the answer reveаls a declaration made by the defendant in the nature of a threat against deceased, and therefore no injury resultеd to the defendant. Wilson v. State, 110 Ala. 1, 20 South. 415; Wilson v. State, 140 Ala. 43, 37 South. 93. Threats or statements in the nature of threats, tending to show preparation for crime, or even the conduct ‍​​‌​​‌‌‌​‌‌​‌​‌‌​‌​​​​‌‌​​‌​​​‌‌‌‌​​‌​‌‌‌‌​​​​​​‍of accused at or near the time or place of the crime, are admissible in evidence. Davis v. State, 126 Ala. 44, 28 South. 617.

[8] After the witness Gilley had testified the defendant made a motion to exclude his testimony. AATrere no objection is made tо the question until it has been answered, the defendant is not entitled to have the answer stricken on motion. Malone v. State, 16 Ala. App. 185, 76 South. 469; Machen v. State, 16 Ala. App. 170, 76 South. 407; Rivers v. State, 13 Ala. App. 362, 69 South. 387; 13 Michie Dig. p. 720.

[9,10] Besides a portion of the testimony was admissible. It was proper to show, as testified to by the witness, that on the day of the shooting defendant was looking at a pistol on the porch of his house, and, if portions of the testimony were objectionable, they should have been pointed out, and specifically objected to, and not made the grounds of general objections, аs was the case in this instance.

[11] There was no error in refusing to allow the witness Dr. Smith to give his opinion as to the relative positiоns of the defendant and deceased at the time the fatal shot was fired. As an expert he could give his opinion as to thе range of the shot; but the conclusion as to the position of the parties when it was fired was a matter for the jury to draw from аll the facts in-the case. Rigell v. State, 8 Ala. App. 46, 62 South. 977.

[12] There was no merit in the objection made to the question asked by the solicitor to th.e witness Mrs. Clark-as to whether she told defendant what she had heard, the question having reference to a conversation witness had detailed as having taken place that day between ‍​​‌​​‌‌‌​‌‌​‌​‌‌​‌​​​​‌‌​​‌​​​‌‌‌‌​​‌​‌‌‌‌​​​​​​‍deceased and defendant, wherein deceased said hе would, get defendant before night. The threat having been made directly by deceased to defendant, the solicitor was no doubt laboring under a misapprehension when he asked the witness if she had told defendant about it.

[13] AVritten charge B was properly rеfused. It was clearly the province of the jury to say from all the evidence which party was at fault in bringing on the difficulty. Moreovеr the charge singles out and gives undue prominence to a” portion of the testimony.

[14] AVritten charge G was properly refusеd. Its meaning is obscured by the use of the word “then” where it was no doubt intended to use the word “there,” and, even with this correctipn, it would bе faulty, in that it is not based upon the evidence. Moreover, “just apprehension that he was in dan ger of suffering great bodily barm,” as hypothesized in this charge, is not sufficient. He must be in a position of actual peril, or in such position that a reasonable man so situated would have believed himself to be in siich danger, and must have honestly believed he was in such danger.

[15] The other charges refused to the defendant bear on the doctrine of self-defense, ‍​​‌​​‌‌‌​‌‌​‌​‌‌​‌​​​​‌‌​​‌​​​‌‌‌‌​​‌​‌‌‌‌​​​​​​‍and were fully and fairly covered by the court’s oral charge.

In addition to the propositions insisted upon by counsel in their brief, we have considered every objection and exception taken, and we find no merit in any of these.

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

Affirmed.

<g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

<2&wkey;For other oases see same topic and KEY-NUMBER ‍​​‌​​‌‌‌​‌‌​‌​‌‌​‌​​​​‌‌​​‌​​​‌‌‌‌​​‌​‌‌‌‌​​​​​​‍in all Key-Numbered Digests and Indexes

Case Details

Case Name: Clark v. State

Court Name: Alabama Court of Appeals

Date Published: May 10, 1921

Citations: 91 So. 328; 18 Ala. App. 209; 1921 Ala. App. LEXIS 174; 4 Div. 692.

Docket Number: 4 Div. 692.

Court Abbreviation: Ala. Ct. App.