Hill v. State, 41 So. 621

41 So. 621 | Ala. | 1906

DENSON, J.

The indictment charges manslaughter in the first degree. From a judgment of conviction the defendant appealed.

The killing occurred on a Sunday afternoon in June, 1904. The defendant, and others, all barely grown and hardly in the 20’s had been attending singing exercises at Mobb’s Schoolhouse. After the exercises were over they congregated in the road near, the schoolhouse and engaged in “friendly scuffles and play-,” out of which grew the unfortunate difficulty in which the deceased lost his life at the hands of the defendant. The deceased was a cripple.- In his infancy his feet were so badly burned that his toes and the front part of his feet were of necessity amputated, leaving him only stubs to. walk on. He wore boots that indicated the shape of his stubs —the condition of his extremities; and the evidence tended to. show that he could not, without' holding to something, be still while standing erect, but that lie- would walk and remain erect so 'long as he was moving. Some Of the evidence tended to show that defendant stabbed the deceased once while deceased was retreating from the defendant, and that defendant overtook him, while the defendant’s evidence tended to show that he was retreating and the deceased was pursuing him. There was evidence which tended to show self-defense, and the defense relied on was essentially that of self-defense'. The appellant’s counsel has made an assignment of errors on the record, and we shall consider the cause for the most part with respect of the errors assigned.

Evidence showing the condition of . the deceased’s feed, and the admission of the boots as evidence, was allowed over the objection of the defendant, and his motion to exclude the evidence was overruled. These rulings of the court against the defendant were excepted to and are presented for review by the grounds in the assignment of errors numbering 1 to 13, inclusive, and 28, 29, and 38. “The test of the relevancy of the evidence,” it is said by Wharton, is “whether it conduces to the proof of a pertinent -hypothsis; a pertinent hypothesis being one which, if sustained, would logically in: fluence the issue.” — 1 Wharton on Ev. § 20. And Elliott, in his work on evidence, says: “As a general proposition -it may be said that any evidence that tends in any reasonable degree to establish the probability or improbability of a fact in issup, no matter how slight its weight may he, is relevant.” — Elliott on Ev. §§ 144, 145, 147; Whitaker’s Case, 106 Ala. 30, 17 South. 456; Governor v. Campbell, 17 Ala. 566, 574. In this case the important and turning issue on the trial was whether the defendant, in taking the life of the deceased, did so in self-defense, as it is defined by law.

An important inquiry in respect of this issue was as to the necessity for taking the life of the deceased. It must have been an imperious necessity, and if the defendant could have avoided the taking of life by retreating, it cannot be said in law that such necessity existed, nor could it be said to exist if the defendant could have overcome the deceased otherwise than by taking his life. The tendency of the state’s evidence was that the deceased was without firearms, and none of the evidence, tended to show that he ever exhibited firearms or weapons of any kind during the difficulty. Suppose the deceased had been without legs, could it be doubted for a moment that evidence of the fact would have been relevant for the purpose of showing that the defendant could have easily escaped injury at his hands by keeping out of his way? Or, suppose the deceased had been a man of perfect and powerful physique, it could not be doubted under the tendencies of the evidence for the defendant in this case, that this fact would have been comptent as tending to support the theory of self-defense — that a necessity existed for defendant to resort to a deadly weapon on account of the deceased’s superior manhood.

Kerr on Homicide, § 437. In Gunter’s Case, the defendant was prosecuted for an assault with intent to murder, and the injured party, who was examined as a witness, was allowed to testify that he was shot by the defendant. The court said: “This was a pertinent inquiry, as tending to show the relative conditions of the parties at the time of the assault.” — Gunter’s Case, 111 Ala. 23, 20 South. 632, 56 Am. St. Rep. 17. It seems to us that the condition of both parties, deceased and the defendant, was of the res gestae of the killing; and, if age of a party is competent evidence, for a much stronger reason, it would seem to us, should be evidence that one of the parties had no feet. This, in line with the state’s evidence and theory, would tend to rebut any inference of great danger of death or of bodily harm to the defendant from the deceased. We are sure it is within the range of common knowledge that a man without feet has not the same power or rapidity of locomotion as one not so afflicted.

There is nothing in the case of Griffith v. State, 90 Ala. 583, 8 South. 812, to support the defendant’s contention. There the defendant was tried for the murder of an infant, and it was sought to prove declarations of a midwife as to the condition of the infant. The court said the midwife should have been called to prove the fact, if relevant; that her statements were not part of the res gestae. Nor is the citation by the appellant from Mr. Elliott’s work on Evidence (§ 1228) in point. The case cited by. Mr. Elliott was one in which a husband had sued a railroad company for damages for the death of his wife, and it was held error to allow the introduction in evidence of a photograph of the wife, who appeared to be a handsome woman, — Smith v. Leigh Valley R. Co. 117 N. Y. 379; 69 N. E. 279. The appearance of-the wife was not an issue in the case and could not have shed any light on the negligence yel non of the defendant. We are of opinion that the court’s ruling on the evidence with respect to the deceased’s physical condition are dree from error. Nor do we think there was error in allowing the boots of the deceased to be introduced in the evidence. They were shown to lie in the shape of the deceased’s “stubs” on which lie walked, and were worn by him at the time he ivas killed. This was object evidence, and perhaps conveyed to the jury a clearer idea of the deceased’s condition than mere verbal description by-witness could.

But appellant insists that proof of the fact that deceased was a baby when the misfortune that deprived him of his feet occurred, and how it occurred, ivas wholly irrelevant, and calculated to mislead and unduly prejudice the jury against him. The argument is that it was sentimental. Without determining the relevancy or admissibility of the evidence, we think the court’s action may be justified on a well-established rule of evidence. The solicitor’s question which drew out the evidence was as follows: “State if there was anything the matter with deceased’s feet.” To the question objection was made on the grounds that it called for facts irrelevant and immaterial, and which would not tend to shed any light on the issues in controversy. The objection being overruled, the witness answered that “when deceased was a small child he had his feet, so badly burned causing him to be very badly crippled.” We have seen that the condition of the deceased was competent and relevant' evidence, so the objection was properly- overruled. The motion to exclude went to the entire answer. A part of it at least was competent; hence the motion was properly overruled, and all the answer properly remained as evidence. The witness, after testifying to other relevant facts in regard to deceased’s condition, was askd by the solicitor: “How long had he been this way?” To the question objection was made and overruled. The witness answered: “Ever since he was a baby.” Now, if it should be conceded that the answer Avas open to the motion to exclude, yet Ave have seen that this evidence, substantially, had been given by this Avitness. It was before the jury Avithout proper motion to exclude, and, if there Avas error in overruling this last motion to exclude,. Ave are satisfied it Avas error Avithout injury. — Code 1896, § 4333.

It Avas competent to prove, by Avitnesses who examined and dressed the body of deceased, Avhere and when they first saw the body, that it had wounds on it, the appearance and location of the Avounds. Hence, there is no merit in exceptions to the court’s ruling Avith reference to evidence of this nature and covered by the grounds numbered 14, 15, 16, 17, 18, 19, 20 and 21 in the- assignment of errors.

Witness Charley-Lowery, who examined the-body of the deceased, testified that “there was a Avound which appeared to', have been made with: a knife in the left breast of the deceased; looked like the .knife blade struck and Avas immediately AAdthdraAAm, being stuck straight in.” He further testified: “There Avas a cut made on the left shoulder of the deceased, just under the shoulder blade, with a knife.” Objection was made to this evidence on the ground that the witness was not an expert or competetnt to testify to the character of the wounds examined and found by him. We think the evidence was properly admitted, and the case of Fuller v. State, 117 Ala. 36, 23 South. 688, is directly in point, both on the admissibility of the evidence and on the further proposition that, if it should be conceded that there was error in admitting it, under the statute (Code 1896 § 4333) we would not feel justified in reversing the case on this point. The undisputed evidence showed that the killing was done by the defendant with a knife, and that the deceased was cut in the left side of the breast and under his left shoulder. There was no effort on the part of the witness to state the direction from which the blows were delivered as was done in the McKee Case, 82 Ala. 32, 2 South. 451, cited by the appellant, and that case is not in point.

Witness Frank Hipps, for the defendant, testified that about an hour before the difficulty he saw deceased with some pistol cartridges in his hands, and heard him say, with reference to them, “that he had some capsules; that he did not know but what some of the boys might want some, and, by God, he would have them ready.” On cross the solicitor was permitted to ask the witness if deceased was not joking when he said this. This question called for a collective fact, and not a conclusion. Moreover the answer to the question was harmless. The witness stated that lie did not know whether he was joking or not; that he used the language stated.

The state, on cross-examination and against the defendant’s objection, was permitted to ask the defendant’s witness, Willie York, and two other witnesses, how far they lived from Mr. Henson, the father of deceased. If it be conceded that the question called for irrelevant and immaterial evidence, yet it was a question on cross-examination and one which was within the discretion of the court to allow. — Noblin's Case, 100 Ala. 13, 14 South. 767; Amos Case, 100 Ala. 70, 14 South. 878; Tobias v. Treist & Co. 103 Ala. 664, 15 South. 914; Rhodes Furniture Co. v. Weeden & Dent, 108 Ala. 252, 19 South. 318; Stoudenmeire v. Williamson, 29 Ala. 558; Martin's Case, 104 Ala. 71, 16 South. 82. For the same reason there was no error in permitting the solicitor to ask the witness McClure, “when he told Mr. Hill, defendant’s father, about witness finding the pistol.” Nor in allowing the solicitor to ask the defendant on cross-examination to “name one or two to whom he showed the knots on his. head.” And upon the same authorities and considerations, we hold there was no error in allowing the solicitor to ask the defendant where he stayed at night while at Skidmoreis.

The objection to the argument of the solicitor is without merit. — Cross' Case, 68 Ala. 476; Hobbs' Case, 74 Ala. 39; Motes v. Bates, 74 Ala. 374; Cunningham's Case, 117 Ala. 59, 23 South. 693.

This brings us to the consideration of written charges refused to the defendant. It is conceded by .appellant that refused charge A is a duplicate of given charge, hence the court was under no duty to give charge A. — 1 Mayfield’s Dig. p. 174, § 209.

Charge B is bad for not hypothesizing the materiality of the- fact falsely and intentionally sworn to. In the case cited by appellant the fact or facts referred to were stated in the charge, and were material.

It is here insisted that charge G, refused to the defendant, should have been given, and the case of Carter v. State, (Ala.) 40 South. 82, is relied on to- support the insistence. The charge is a copy of the one involved in that case, and with the exception that the word “such” is inserted before the word “doubt,” thus exempting the charge from the particular criticism that was made on the charge in the- Gander Gase. It is true that the court in that case- simply said of the charge (5) that it “was properly refused, as it was hypothesized on ‘any doubt’ in the minds of the jury, and not on a reasonable doubt.” The criticism was sufficient to condemn the charge and answered the purpose of the court on that occasion; but it does not follow that the charge was free from other vices. The charge might well have been condemned for the further reason that it was argumentative. And the charge in its amended, form, as it appears here, must be condemned as being argumentative. — Amos’ Case, 123 Ala. 50, 26 South, 524 Neville’s Case, 133 Ala. 99, 32 South. 596; Roger’s Case, 117 Ala. 9, 22 South. 666; Bowen’s Case, 140 Ala. 65, 37 South. 233; Spraggin’s Case, 139 Ala. 93, 35 South. 1000; Smith’s Case, 137 Ala. 22, 34 South. 396.

Charges D, F, and I were arguments, and were properly refused. Charge G-, besides being argumentative, is elliptical, and was properly refused.

George Henson was the only witness for the state that. the evidence tended to show concealed the pistol and cartridges, or attempted to suppress or hide any fact connected with the case. In charge 21 for the defendant, he received full benefit of the proposition announced by refused charge E. Charge 21 was even more pointed, in that it named the witness, and the court was under no duty to give charge E.

Refused charge H was substantially given in charges 4 and 9, and, without determining whether the charge is, or not, vicious, the court was under no duty to give the charge. — 1 Mayfield’s Dig. p. 174, ; 209.

We have found no error, and the judgment appealed from is affirmed.

Affirmed.

Weakley, O. J., and Haralson and Dowdell, JJ., concur.