Francis v. State

65 So. 969 | Ala. | 1914

GARDNER, J.

The defendant was convicted of murder in the first degree, and his punishment fixed at life imprisonment. The trial was had on October 3, 1913.

It is first insisted by counsel for appellant that there was reversible error in the admission in evidence by the trial court of the testimony of one O. L. Turley, taken on preliminary trial; said witness being absent on the final trial.

■ The witness Rankin, one of the counsel for the state, was permitted to testify, without objection, that he examined O. L. Turley as a witness on preliminary trial of this case; that he had a conversation with said Turley in which he said his residence was in Nebraska and his address Freemont, Neb.; that witness told him he would let him know what day to come when the case was set for trial; that said Turley told him he was going to Nebraska; and that he left Athens the nexjt day. It was also proved by witness Strane that he was at the station the next day after the preliminary trial and saw the witness Turley get on the train going north, and that he said he was going to his home in Nebraska; that ;he has not been seen in Athens or in the county since that time.

The witness Rankin identified a letter received by him purporting to have been signed by said O. L. Turley, and also the envelope in which it was received. The envelope was postmarked “Freemont, Neb., Aug. 30, 11:30 a. m., 1913.” The letter was headed and dated “Freemont, Neb., Ang. 29-13.” It purported to be signed by O. L. Turley, and was addressed to J. O. Rankin, attorney at law, Athens, Ala., and its contents clearly indicated that the said Turley would not attend the trial unless furnished transportation by the state. On the back of the envelope Avere the words: “From J. W. Turley, Freemont, Nebr.” The defendant’s first objection to the letter being admitted in evidence Avas upon the specific ground that the envelope purports to come from one -I. W. Turley, and the letter purports to be signed by O. L. Turley. We think it clear that this was not sufficient to exclude the letter from evidence. To a question asked Avitness Rankin as to identification of the letter there Avas objection upon specific grounds. We have considered each, and We conclude they were not Avell taken.

The testimony of the witness O. L. Turley which seems to have been taken down at the preliminary tidal by a stenographer was identified as his testimony by the stenographer who took the same and was by her read to the jury from her notes, and she testified that it was a correct report of the witness’ testimony on preliminary trial. The evidence Avas admitted by the court.

We are of the opinion that in this there was no error.

“The testimony of a witness on a former trial or prosecution of the defendant, for the same offense, is admissible as evidence against him on a second trial, if the witness is beyond the jurisdiction of the court, whether he has removed from the state permanently, or for an indefinite time.”—Lowe v. State, 86 Ala. 47, 5 South. 498.

The meaning of the rule is fully discussed and the authorities are reviewed, in the above-cited case. The following cases may also be construed as supporting the ruling of the trial court.—Burton v. State, 107 Ala. 68, 18 South. 240; Lowery v. State, 98 Ala. 45, 13 South. 435 (second headnote).

Charge 1, refused to defendant, was sufficiently covered by the charge given by the court, designated by us, for convenience, “A,” as found on page 47 of the transcript. This suffices as a disposition of this charge, but we do not mean to indicate an approval of the-charge as asked.

Charge 2, requested by defendant, was properly refused. The belief of defendant of imminent danger, etc., must be a reasonable belief produced from the surrounding circumstances.—Storey v. State, 71 Ala. 329. The charge also appears to be somewhat confused and therefore misleading.

Charge 3 omits other elements essential to self-defense and was properly refused. It goes much further than the charge held good in Snyder v. State, 145 Ala. 33, 40 South. 978.

Charge 4 is confusing, as it seems to attempt to combine some elements which are sought to reduce the killing to manslaughter, with other elements applicable to the theory of self-defense. Its tendency was to mislead, and its refusal was not error-.

The words found in charge 5, that “he did not provoke the difficulty,” as there used, are not, in our opinion, the equivalent of the words, “free from fault,” as required by our cases.

Charge 6 was substantially covered by the charge given at the request of the defendant, designated by us, for convenience, “B,” as shown on page 45 of the transcript.

Objection of the state was sustained to the question which sought to elicit what was the duty of the defendant, who was night watchman at the cotton mill, and who was on duty as such night watchman at the timé of the fatal shooting, and also as to whether defendant had been robbed the night before, and as to his being-armed, etc. It is unnecessary that we determine whether or not any of these questions called for relevant and material evidence under the circumstances of this case, for the reason that it was subsequently admitted by the state- that the duties of defendant as night watchman were to protect the property of the mill, and the defendant was permitted, without objection, to testify as to his specific duties, his going around the mill, etc., to keep up the fires and to protect the property; that he was always armed while in the discharge of these duties and was required to go armed; and that he had been robbed the night before. The defendant can therefore not complain as to any previous rulings as to such matters— matters which were subsequently admitted in evidence without objection, or were confessed by the state, and which Avere uncontroverted.

Questions which sought to elicit testimony as to Avhat defendant said, some time after the shooting, by Avay of explanation and exoneration of the act, were clearly subject to the objection interposed. Such statements Were not shoAArn to be a part of the res gestae, were mere narratives, and came under the condemnation of self-serving declarations.

We have thus briefly made revieAV of those matters argued by counsel AAdiicli seem to us to merit special mention.

We have given to the record and to each point presented that careful consideration Avhich the importance of the case to this, defendant and to the state requires, and we do not find any reversible error committed by the court below in the trial of this cause.' It results that the judgment of the circuit court is therefore affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Somerville, JJ., concur.