46 So. 864 | Ala. | 1908
The indictment- against- defendant Avas for manslaughter in the first degree, for the killing of the Mitchell; and he was accordingly convicted and sentenced.
The salient facts of the shooting, as .given by Charlie Hill, aaTlo Avas present, and by defendant, himself, were; that some one beat upon the door of his house, and de< fendant said, “What is that?” two or three times, and no-one answered; that defendant got his gun, opened the door and asked “who it was,” and no one answering, he shot deceased.
The defense was sought to be rested on the grounds, that defendant had a right to defend his house against unlawful invasion; that burglaries were being committed in the neighborhood, and being scared, he shot to protect himself against a supposed burglar. The sheriff, Wiggins, it appears, went to the house after the killing.
On the examination of C. Cook by the state, the defendant asked him “what, if anything, the defendant said in the house.” The court sustained an objection interposed 'by the state to the question. The proposed evidence was not a part of the res gestae of the offense. It appears to call for a selfserving declaration of the defendant, made after the killing, and was properly disallowed. — Roberts v. State, 68 Ala. 515. Moreover, the proposed answer was not shown, and the court could not, therefore, pass intelligently on the question. — Ross v. State, 139 Ala. 144, 36 South. 718.
On redirect examination of this Avitness, who had stated what the defendant had said, in the nature of a confession, about the killing, the solicitor asked, “What was it the defendant said?”
There was no error here. It called for a repetition of the evidence as given by the witness, admitted properly without objection, and was in the interest of greater certainty, as to what defendant had said. ,
The court cannot be put in error for- sustaining the objection to the question asked the defendant, “Were yon and Berry Mitchell on friendly terms?” as it is of a leading character. ,
On cross-examination of defendant, examined as a witness for himself, he was asked, “What did you have the gun for?” It was legitimate to make this inquiry on the cross. His motive was, under the facts, proper to be inquired of, from him. — Williams v. State, 123 Ala 39, 26 South. 521.
The defendant was asked on the cross, “You were sent to the coal mine for cutting a man up, were you not?” An objection to the question was overruled. If there was error in this ruling it was error without injury, as the court subsequently ruled out the evidence given in answer to the question.
There was error in the refusal of the court to exclude the argument of the solicitor from the jury. It involved the statement of a fact of which there was no evidence; and in the absence of evidence of attempted flight on the part of the defendant, such evidence, if it had been offered, would not have been competent.
Charge 10, requested by defendant, was. properly refused, if for no other reason, because it failed to state defendant’s belief in the facts hypothesized. — Harrison
Charge 13 was properly refused. — Hughes v. State, 117 Ala. 26, 23 South. 677; Pate v. State, 94 Ala. 14, 10 South. 665.
Charge 16 is argumentative and misleading, and was properly refused. — Liner v. State, 124 Ala. 2, 27 South. 438.
Charges 17, 18, and 21 were properly refused.
Charges 19, 20, and 22 were mere arguments, and were properly refused.— Austin v. State, 145 Ala. 40, 40 South. 989.
Charge 23 was properly refused. It is involved and confusing.
Reversed and remanded.
