110 So. 171 | Ala. Ct. App. | 1926
The evidence for the state tended to prove the homicide charged, and that it was done with malice. That being the case, the general charge as requested by defendant was properly refused. Spelce v. State,
It is insisted that the court committed error in excluding from the showing for the absent defendant's witness, Mrs. Ed Glass, certain designated statements. Even if some of these rulings should have been technically erroneous, the character of the testimony excluded was such as to render its exclusion harmless error. However, we find no error in the court's rulings. The statement that witness "noticed that he did many peculiar things" was a mere conclusion, and the statement, "In my judgment his mind was unsound on the afternoon of the alleged crime, and he did not know nor realize what he was doing," was subject to the same objection. True, the issue of insanity is not confined to expert testimony. But as to both expert and nonexpert testimony the opinion as to sanity and to insanity must be based on observation and the surrounding facts and circumstances. The showing here does not disclose a proper predicate. Hutson v. Cont. Casualty Co. (Miss.)
The statement in the showing of the witness Glass that "she knew his (deceased's) character for raising rows, fighting," etc., was properly excluded. She must first have testified that she knew the general character of deceased in the neighborhood in which he lived for peace and quiet as a predicate for the testimony as to his general character for peace and quiet. Elam v. State,
The other statements excluded from the statement of the witness Glass were the details of a transaction prior to the difficulty, and as such were properly excluded.
Upon the examination of Oss Hinds, a witness for defendant, who testified to the general bad character of deceased for peace and quiet, the solicitor asked as to the state of feelings existing between him and the dead man, and witness, after some hesitancy, said it was bad. The solicitor was then permitted, over objection and exception of defendant, to inquire into certain specific transactions between deceased and witness during several preceding years. This was error, but these errors could not have injuriously affected defendant's case as they related in no way to the issues involved on the trial. The showing as to the testimony of Ed Glass was res inter alios acta and was properly excluded.
The general character of deceased for being a dangerous, blood-thirsty man was proven by several witnesses for defendant, and this fact was not controverted. This evidence is limited in its consideration by the jury to determine solely the meaning of the overt act or demonstration of deceased at the time of the fatal difficulty. Green v. State,
Refused charges 3 and 8 were substantially covered by the court in its oral charge and by written charges given at the request or defendant. McKenzie v. State,
Refused charge 11 is misleading. Under the plea of not guilty, the state carries the burden of proving the defendant's guilt beyond a reasonable doubt by evidence relevant to the issue. Under the plea of "not guilty by reason of insanity," the defendant is permitted to introduce much evidence not applicable to or relevant to the issue of the general plea of not guilty. As to the plea of insanity, the defendant must clearly prove the plea to the reasonable satisfaction of the jury. Code 1923, § 4572; Cutcliff v. State,
The foregoing disposes of each exception *579 insisted upon in brief of counsel for defendant. In addition we have carefully read this record.
The defendant has had two trials before a jury of his countrymen. Both juries have said by their verdicts that the defendant is guilty of murder. The facts were substantially the same in both trials. On former appeal the judgment was reversed, because this court was of the opinion that undue prominence was given to the interest of defendant as affecting his testimony. Here there is no such error. The defendant has now had a fair trial free from prejudicial error, and the judgment is affirmed.
Affirmed.
