Holmes v. State

136 Ala. 80 | Ala. | 1902

SHARPE, J. —

-Defendant was convicted of an assault on Annie Love, a woman, with a pistol. The woman was shot and her testimony tended to show defendant shot her intentionally. Defendant testified the shooting was accidental. He testified that when it occurred he started to Mr. Latham to get him to go for a doctor. He was asked by his counsel if he told Mr. Latham about the accident and an objection to the question was sustained. The ruling was right, being in conformity with the familiar rule which denies to a party the right to make evidence for himself of his own mere declarations. Defendant was asked by his counsel, “How did you happen to have the pistol on that occasion, and what were you going to do with it?” An objection to this question was sustained and properly so, because the question called for an unconimunicated purpose or intention, the proper proof of which lay in inference from the circumstances in evidence, and not in the direct statement of the witness. — Brown v. State, 79 Ala. 51; Lewis v. State, 96 Ala. 6; Johnson v. State, 102 Ala. 1; Harrison v. State, 78 Ala. 5.

Latham as a witness was not allowed to answer .defendant’s question “Do you know why Arthur Holmes had a pistol at the time of the shooting?” An. answer to the question would have involved a conclusion, inad: missible as evidence.

After giving charges 1 to 4, inclusive, the court said to the jury: “I give you these charges in connection with my general charge, and this all means that you cannot convict this defendant until you are satisfied beyond all reasonable doubt of his guilt.” We are of the opinion that this did not amount to a qualification of the written charges within the implied prohibition of section 3228 of the Code. What was said apparently had reference to the oral as well as written instructions. It purported to state a general proposition as resulting from the sev: eral minor propositions asserted in the oral and written charges, without detracting from or limiting the meaning of the latter.

Refused charges 5 and 6 were each faulty in purport’ ing to authorize an acquittal upon considerations which might have arisen from a part of the evidence only, whereas it was the duty of the jury to consider and to act upon the evidence as a whole.

Charge 7 had an undue tendency to promote adherence by each juror to his individual and possibly erroneous conviction, and thereby to prevent an agreement upon a proper verdict.

There was in the testimony, and even in the testimony other than that given by Annie Love, evidence upon which the jury could have founded a conviction, hence charges' 8 and C were properly refused. Charge B is argumentative. ■ ■ -

■ No reversible error appearing in the record, the judgment will be affirmed.