Davidson v. StateDavidson v. State
Lead Opinion
The fact that one of the jurors, Tom Edmonds, did not reside in Marshall county, did not afford a ground for the challenge of the entire array of regular jurors drawn for the week nor for a motion to quash the entire venire. Section 29 of the Jury Law; Acts 1909, p. 317; Whitehead v. State,
There was no error in permitting the state to prove by the witness Ola Nailor that defendant was armed with a gun when at her hopse with the deceased the day of the killing and just previous thereto, that the defendant threatened to kill deceased, and that he walked off 'by him with his gun drawn. These facts seem to have been a part of a continuous transaction resulting in the .homicide, which occurred shortly thereafter down the road after the parties left the house of the witness. Blair v. State (Ala. Sup.)
There was no error in admitting the deceased’s statement that the defendant shot him as a proper predicate was laid to render it a dying declaration.
The other objections and exceptions to the rulings on the evidence are so manifestly without merit that a discussion of same can serve no useful purpose.
That portion of the argument of the solicitor as objected to was not so objectionable as to constitute reversible error. Ex parte State ex rel. Davis, Attorney General,
There was no error in refusing defendant’s requested charge 1. In the first place, it is not based on the evidence in the case. Edwards v. State,
Charge 2 was properly refused. If not otherwise bad, it instructs for an acquittal if any one juror has a reasonable doubt of the defendant’s guilt. This fact should 'prevent a conviction, but would not authorize an acquittal. Charges 3 and 4 are likewise faulty. Charge 5 was well refused for the use of the word “supposition.” Walters v. State (Ala. App.)
Charge 12 was not only abstract, but assumed that there was proof of good character for the defendant when there was no such proof. Charge 13 was covered by given charge 5. Charge 14 was bad for the use of the word “supposition.” Moreover, the principle asserted was covered by many of the given charges. Charge 15 instructs for an acquittal if the jury entertain a reasonable doubt as to whether or not defendant *474 acted upon a well-founded belief of peril, and pretermits the other elements of self-defense. Charge 16 was covered by several given charges. Charge 17 asserts no sound proposition of law.
Charge 18 invaded the province of the jury, as it was for them, under the evidence, and not the court, to say whether or not defendant was guilty of a higher degree of crime than manslaughter in the second degree.
The verdict of the jury was not contrary to the great weight of the evidence or the inferences to be drawn therefrom, and the trial court did not err in refusing the motion for a new trial.
The judgment of the circuit court is affirmed.
Affirmed.
Addendum
On Rehearing.
It is suggested upon rehearing that the original opinion, in dealing with the objections to the evidence of Ola Nailor, proceeds upon the idea that it related to the sayings and conduct of defendant when at her home in the afternoon and just before the hilling and takes no account of the objections and exceptions to what she states as to what occurred during the first visit; that is, in the morning. There was no error in permitting this witness to testify that defendant told deceased he was going to kill him. This same witness was asked by the solicitor, “Did he go away?” Answer, “Willie walked off by him, and him with his gun drawed on him in the yard at my house.” This evidence was not responsive to the question which was asked by the solicitor and not the defendant’s counsel, and the only ground in the motion to exclude the same was because not responsive, and not because it was illegal or incompetent. It is a well-settled rule that only the -party asking the question can move to exclude a nonrespon-sive answer upon the sole ground that it is not responsive. Patrick v. State,