Fonville v. State

91 Ala. 39 | Ala. | 1890

COLEMAN, J.

Acts and declarations, to be admitted as res gestee, must not only be substantially contemporaneous with the main fact under consideration, but must be so closely connected with it as to illustrate its character.—Ala. Gr. So. R. R. Co. v. Hawks, 72 Ala. 117; Martin v. Phinizy, 56 Ala. 339; Gassenheimer v. State, 52 Ala. 318. It is not shown what connection the former difficulty inquired about, between the witness Comer and some other party, had with the difficulty between the defendant and the witness Comer, or how the former tended 'to explain or characterize the assault of the defendant on the witness in the latter. The objection to the question relative to a different difficulty was properly sustained.

For the purpose of a trial, the State admitted that two absent "witnesses summoned by defendant, if present, would testify to certain stated circumstances connected with the assault for which the defendant was being tried. During the examination of the witnesses, the solicitor inquired of one, if he was acquainted with the two absent witnesses concerning whom the admissions had been made by the State, and if so, “were they white or colored, and how old were they ?”

It is the law of this State, that the admission of illegal or irrelevant evidence against the objection of a defendant, on trial for a criminal offense, is a reversible error, unless it affirmatively appears that no injury resulted therefrom.—Maxwell v. State, 89 Ala. 164; Marks v. State, 87 Ala. 99; Vaughan v. State, 83 Ala. 55; Ib. 16; Mitchell v. State, 6 Ala. 26. To inquire and prove that the absent witnesses were negroes, certainly was irrelevant, unless the court judidaily knew the color of the witnesses affected their credibility. If it was judicially known that, as a race, the witnesses were prima facie unworlby of belief, the question was both relevant and legal. We can not judicially affirm of any race of people, of whatever color, as St. Paul did of the Cretians, that they were “always liars.” Under the principle above declared, the objection to such a question, properly made and reserved, should be sustained.

The law is well settled, that a general objection to evidence,, a part of which is admissible, and a part objectionable, may be overruled. The objection should point out and be limited to the part which is illegal.—Hayes v. Wood, 72 Ala. 93; 3 Brick. Dig. 443, §§ 570, 571; Wagner v. Warren, 75 Ala. 188.

It was entirely competent to inquire as to the ages of the absent witnesses; as much so as it would have been permissible to prove their general character for truth and veracity,, or relationship to the accused. Information of this kind would enable the jury to properly weigh the evidence. The objection being general to a question, in part legal, and in part illegal, it was not a reversible error to sustain an objection to it.

The defendant attempted to show that he committed the assault while intoxicated, and on his direct examination testified, that he purchased a bottle of whiskey in Georgiana, which he drank just before the difficulty. .On cross-examination, the solicitor asked him from whom he purchased the bottle of whiskey. This was permissible on' cross-examination, as the State had the right to disprove the statement of the witness, as to the purchase of the whiskey, and quantity purchased.

There was no error in sustaining the objection to the question to the defendant: “Did you intend to kill Comer ?” The “intent” of the defendant was a conclusion to be ascertained by the jury, from all the facts testified to in the case.

Voluntary drunkenness does not excuse or palliate an offense.—Tidwell v. State, 70 Ala. 33. It can not be said, in any proper sense, that intoxication excuses the crime committed under its influence, or that the defendant should, on that account, be entirely acquitted of the crime.—Ford v. State, 71 Ala. 385. Continued and excessive drunkenness may render the accused incapable of forming or entertaining the specific intent, which is a material ingredient of the statutory offense of an assault with intent to murder.—Ross v. State, 62 Ala. 224.

Drunkenness does not excuse or palliate an offense, but it may produce a state of mind, in which the accused is incapable oí entertaining or forming the design to take life. In such case, the accused is entitled to an acquittal of the felony, not because of the drunkenness, but because of that mental condition, which rendered him incapable of deliberation, or to form a design.—Mooney v. State, 33 Ala. 420; DeArman v. State, 63 Ala. 176. These conclusions rest upon the principle, that the law will not punish an act committed by one irrational or insane at the time the act was committed. Whether this condition of mind is superinduced by drunkenness, or proceeds from other .causes, can make no difference in principle.

In all such cases, the burden of proof is on the defendant, to establish by a preponderance of the evidence, to the satisfaction of the jury, that such was the condition of the mind of the defendant, at the time the act was committed; and a reasonable doubt of this, raised by all the evidence, does not justify an acquittal.—Parsons v. State, 81 Ala. 578; Boswell v. State, 63 Ala. 307; Ford v. State, 71 Ala. 385; Maxwell v. State, 89 Ala. 150.

Charge No. 2 asked by the defendant manifested a total misconception of the law applicable in such cases. A person is not excused for an act, because it was done under the “influence of intoxicating liquor,” or if the act was “inspired” by drink. To so hold would nullify the principle-, that drunkenness does not excuse crime. Such a doctrine would excuse crime resulting from moral obliquity, or wicked propensities, aroused and stimulated into action by voluntary drunkenness.

Charges Nos. 1 and 3 are liable to the same objection. They are misleading, and each invades the province, of the jury. Either theory might be warranted, in the absence of the other. If there is evidence tending to show the guilt of the defendant, and also evidence tending to exculpate him, it is for the jury to determine from all the evidence whether they are legally satisfied of the defendant’s guilt, and not for the court to instruct them, what part of the evidence they shall' credit, and what conviction such evidence shall produce on then-minds, or which theory they shall accept.—Smith v. State, 88 Ala. 23; Adams v. Thornton, 78 Ala. 489.

Depositions were taken to establish a bill of exceptions. It is sufficient to say, that there is no evidence to show that .any bill of exceptions, other than that in the record, was prepared and tendered to the presiding judge. There is no evidence to show that the exceptions proposed to be established by the depositions were ever brought to the attention of the. court, or that the presiding judge refused to sign or give the defendant the benefit of such exception. — Code, § 2760. Section 2762 of the Code was never intended to permit a defendant to go forward, after the adjournment of court, and establish a bill of exceptions, without having first complied with sections 2760-2761 of the Code.

The depositions nowhere pretend to establish a bill of exceptions, but only to prove two objections to testimony, which do not appear in the record. The proposition is not to amend the bill of exceptions, as it appears in the record, but to establish a bill. The circumstances under which the depositions are offered, do not entitle them to any consideration.

Affirmed.