45 So. 246 | Ala. | 1907
—The defendant was indicted for the murder of his wife, Florence, and was tried for murder in the second degree. On a former trial he was convicted of murder in this degree, and on this trial, the plea of acquittal of murder in the first degree was confessed, and he was tried, as stated, for murder in the lower de
Dr. P. R. Jones was examined by the state, and stated, that he was called to see deceased on the night she was shot, the 6th of October, 1906, and found her suffering from a pistol shot wound in the right side of the abdomen, from a 38-caliber ball. Deputy Sheriff Delabar was present. The doctor stated that, when he reached the house, the deceased was lying on the floor and defendant was sitting by her side; that when he and the deputy sheriff went in, defendant did not say anything to him the (doctor) but made a remark to the deputy sheriff, which was, “Well, I know what, you come for, and I am ready to go.” The defendant moved to rule out what defendant said to the deputy sheriff, because irrelevant, immaterial, illegal and incompetent, and because no predicate had been laid therefor, which objections were overruled by the court.
The ground of the objections, as urged by counsel for defendant, was that the remark of defendant was a confession of having shot his wife, and no predicate had been laid for it. While, as a general rule, the admissibility of a confession as having been made voluntarily is determined on preliminary examination by inquiry made to ascertain whether the same was voluntary or involuntary, this is not the only way in which it may be ascertained by the court whether it was voluntary or not. When the facts and circumstances under which the confession was made affirmatively show that there were no improper influences proceeding from the person to whom
The doctor Avas asked by the solicitor, “What was the condition of the deceased at the time?” of the alleged dying declaration. There Avas no error in allowing this question, as it is always necessary to prove the condition of deceased at the time of the alleged dying declaration, as a pr dicate therefor. It was slioAvn that she was in a condition where she would live only a few hours. Furthermore, she stated to the doctor, before making her declaration that she believed she was going to die. She said she kneAV she was going to die, and stated that her husband, the defendant, came home, cursing and abusing her, and she tried to leave the room two or three times, and he compelled her to come back, and the last time she turned around, when he caught and shot her. Before shooting her, she stated, he said that “we would
■ The doctor was asked by the state, what wms defendant’s condition as to being drunk or sober. He testified that he was familiar with the evidence of drunkenness, as he had seen drunken men as much as the ordinary man, he supposed. He testified he wrnuld not have considered him drunk. There wms no error here. — Parrish v. State, 139 Ala. 18, 19, 36 South. 1012; Dozier v. State, 130 Ala. 57, 30 South. 336.
The witness, Joe Heningburg, son of the defendant, testified that he went into the room wliere his mother and the father were, and his father wms in a drunken condition there. He wms asked: “How much so? Did he show he had his right mind? Did he or not act like a crazy man?” These questions were objected to by the solicitor, and the objections wrnre properly sustained. They called for the mere conclusion of the witness— While v. State, 103 Ala. 73, 16 South. 63; Hill v. State, 137 Ala. 71; 34 South. 406.
The defendant, on his examination, ay as asked by his counsel, “Hoav long had you been married to your wife, Florence?” An objection by the state Avas properly sustained. It wms immaterial to the issue how long he had been married.
The Avitness, Stark, for the state, on rebuttal testified that he had knowm the defendant for about 20 years, and had been in his house tAAlce in that time. He wms asked by the solicitor, “Do you know7 how7 he was with his family on these occasions?” The ansAver wms, “He wms always pleasant and agreeable, but Avhen he Avas drunk, he would raise a fuss Avith them and did so Avhen I Avent with him.” The answer could have been of little if any weight for or against defendant; but the latter part of
As an abstract proposition of law, we find no reversible objection to the part of the oral charge excepted to. However, it may have had a tendency to mislead the jury. If so, the defendant could have protected himself against its misleading tendency by an explanatory charge. — Fonville v. State, 91 Ala. 40, 8 South. 688; Engelhardt v. State, 88 Ala. 100, 7 South. 154; Parrish v. State, 189 Ala. 16, 36 South. 1012.
Nor was there error in the three charges given for the state. — Clark v. State, 105 Ala. 91, 17 South. 37; Hornsby v. State, 94 Ala. 55, 10 South. 522; Stillwell v. State, 107 Ala. 16, 19 South. 322; Compton v. State, 110 Ala. 24, 20 South. 119.
Affirmed.
