64 So. 309 | Ala. | 1914
Section 7149 of the present Code provides that when an “offense may be committed by different means, or with different intents, such means or intents may be alleged in the same count (of an indictment) in the alternative.” In'the instant case the defendant demurred to the indictment upon the ground that it alleged, in the alternative, that the defendant committed the unlawful homicide charged in the indictment, by cutting the deceased “with a knife or by shooting him with a gun.” The indictment was not subject to the grounds of demurrer interposed to it. —Code 1907, § 7149, and authorities there cited.
As the deceased admittedly provoked the difficulty, Ave cannot see hoAV the mental attitude of the defendant, before he saw the deceased on that day, and before there was any quarrel Avith the deceased of any sort was admissible in evidence on behalf of the defendant. Whether the defendant, Avho seems to have taken dinner at Dan Dudley’s house on the day of the homicide, Avas in a good or a bad humor Avhile at said Dan Dudley’s house, whether he was mad Avith any one, or had a difficulty • Avith any one Avhile there, were matters, so far as this record discloses, altogether foreign to any issue presented in this case. It is not claimed that the defendant had even then seen the deceased, or that he then
“Acts or declarations, to he admissible under the principle of res gestae, must be substantially contemporaneous with the main fact under consideration, and so.closely connected with it as to illustrate its character.” — 1 Mayf. Dig. p. 774, subd. 33.
There is no error in this record. The judgment of the court below is therefore affirmed.
Affirmed.