56 So. 88 | Ala. Ct. App. | 1911
It was not controverted, in the trial of this case, that the appellant killed Jesse Ryan by shooting him with a pistol on the premises of Pete Montgomery, also known as Pete Dorsey, where the deceased was living at the time. There was evidence tending to show that the deceased was interested in Cozy Dorsey, a .daughter of Pete Dorsey, who lived at the same house, and who testified that she and. the deceased were “mighty good friends,” and that she was cooking for him; that the defendant had recently begun to pay attentions to the same woman,. and that one result of
In the course of the examination of Plush Martin, a witness for the state, who seems to have been a friend of the defendant, the two having visited Pete Dorsey’s house together the night before the killing, he testified, without, objection on the part of the defendant, that a note was brought to him on the day before the killing which, there was evidence tending to show, was written by Cozy Dorsey. The bill of exceptions does not show that the defendant excepted to any action of the court in admitting testimony in reference to that note, which the court allowed to remain before the jury for their consideration. Besides, it was subsequently proved without contradiction that the note inquired about, though written by Clozy Dorsey, was the note of another woman to the witness Plush Martin, and that there was nothing in it about the defendant or the deceased —their names not being mentioned. If affirmatively appears that the reference in the testimony to that circumstance could not. have prejudiced the defendant, and would not have constituted a ground of reversal if the overruling of the objections made had 'been followed by appropriate exceptions.—Fowler v. State, 155 Ala. 21,
It being an admitted fact in the case, as stated in substance by the court in the course of its oral charge, that' the defendant killed the deceased by shooting him with a pistol, there was no impropriety in the statement subsequently made in such charge that “it appears from the evidence in the case that the defendant here must .•set up something by Avay of justification if he would show that he is guiltless.”—Gibson v. State, 89 Ala. 121, 8 South. 98, 18 Am. St. Rep. 96. It is not true, as contended by the counsel for the defendant, that it was a necessary inference from the evidence offered against the defendant to prove the homicide that he was under a pressing necessity to fire in self-defense. On the contrary, the evidence afforded grounds for the inference that the defendant was not free from fault in provoking or bringing on the difficulty; that he made no- attempt to retreat or to avoid the difficulty; and that there Avas an absence of necessity for him to kill the deceased in order to defend himself.
The objection to the part of the oral charge, in Avhich the court undertook to state the theory of the prosecution as to the tendencies of the evidence is untenable. The court did not there misstate the tendencies of the evidence. The tendencies of the evidence favorable to the defense Avere in like manner stated in the charge.
There was no impropriety in thus pointing out to the jury the facts in issue.—Hawes v. State, 88 Ala. 37, 7 South. 302.
It follows from Avhat already has been said as to the tendencies of the evidence in the case that there was no error in the refusal to give the general affirmative charge requested by the defendant.
Affirmed.
