117 Ala. 36 | Ala. | 1897
The defendant was convicted of murder in the second degree, Several exceptions were reserved to the ruling of the court upon the admission of evidence and which are presented for our consideration by appeal. In some instances the same principle of law applies to more than .one exception.. In such cases a decision will be made only upon one .of the exceptions .
The objection that the knife offered in evidence was not sufficiently identified, was properly .overruled. There was evidence tending to show the ownership of the knife and its possession. The weight of the evidence was for the jury. The witness for the prosecution, Sam Teal, prepared a diagram or plat of the place where the homicide occurred. He testified it was practically • correct, and the diagram was admitted, in evidence without objection. Subsequently another witness was examined, with reference- to the position of the parties as shown by the diagram. This witness also stated that he knew the location, and that the diagram ;was practically correct Eefendant objected to his examination relative to the diagram on the grounds that the diagram was neither prepared by the witness nor in his presence, and upon the further ground, that it had not been sufficiently shown that the diagram was correct. Neither ground of objection is tenable, and there was no error in overruling the objection.
The defendant objected to the .statement of a ivitness that he heard the defendant .“cursing.” This objection was properly overruled. On cross-examination, if the defendant had so desired, it was his privilege to have elicited from the witness the precise language used.
The evidence showed that the killing of deceased re-
The case is distinguishable from that of Justice v. The State, in 99 Ala. 180. There were some expressions of deceased in the latter case indicating that he was impressed with the belief that death was impending, but
The defendant introduced evidence of his good character. The prosecution being for murder, it was competent in rebuttal to introduce evidence that for peace and quiet, his general character was bad. There was no error in overruling the objection to this evidence.
According to the rule which prevails in this State, the declarations and statements of defendant were voluntarily made and admissible as evidence against him.
A witness who was present and saw the difficulty, testified, “I saw the wound. It was cut with a knife. It seemed as if the knife went in and went backward. That was the appearance of the wound.” The objection to this testimony is, that it is a mere expression of opinion, and not the statement of a fact, and, not being the testimony of an expert, it is objectionable. The witness was merely describing to the jury the wound as it appeared to him. He had just stated that “blood was coming from his neck;” the wound “was cut with a knife.;” “the appearance of the wound was that it went in and went backwards.” The witness was testifying to facts as he saw them. He may not have used very apt woi’ds to convey his meaning, but whatever of obscurity, if any, there was, might have been cleared up by a cross-examination. This was the view of the trial judge, as is manifest from his ruling and statement at the time. If the question was doubtful, we would not feel justified in reversing the case on this point under our present statute. Other witnesses’ testimony as to the number and. character of the wounds inflictfed on the deceased removed all difficulty on this point. Formerly in this State, the same rule as to error without injury applied alike in both criminal and civil cases ; but later decisions Held that in criminal prosecutions when error was shown, a reversal followed, unless it affirmatively appeared, that no injury resulted from the error. Section 4333 of the Code of 1896, recently adopted, reads as follows : “In cases taken to the supreme court under the pro
Affirmed: