Hosey v. State

59 So. 549 | Ala. Ct. App. | 1912

WALKER, P. J. —

Before the killing which was the subject of the charge made against the appellant, his relation to the deceased had been that of a tenant or share cropper. There had been some disagreement between the two men. The killing occurred in the course of a difficulty between them growing out of rival claims to the possession of a mule. The defendant was shot on that occasion; but, under the evidence in the case, it Avas a controverted question whether he Avas shot by the deceased in the course of the difficulty betAveen them, or by a son of the deceased after his father had received the mortal Avound. With a single exception, the questions presented by the record before ns relate to rulings of the trial court made on objections to evidence and in refusing Avritten charges requested by the defendant.

The exception referred to is an alleged failure of the record to sIioav that the defendant Avas personally present in court Avhen the verdict of the jury was rendered. The record is not defective in this respect. That the defendant, was present in person when the verdict was rendered is shown by recitals of the minute entry of the judgment AAdiich are substantially the same as those which have been held to be sufficient in this regard.— Cardwell v. State, 1 Ala. App. 1, 56 South. 12.

The record does not show that there was any impropriety in the action of the court in sustaining the solicitor’s objection to the question, “About how long?” which was asked by the state’s witness J. C. Black on his cross-examination. That question immediately followed a statement of the Avitness, made in the course of his cross-examination, to the effect that he did not know how long the defendant lay on the ground after he was shot and before he was taken home. The bill of exceptions does not set out the question to which that statement was an answer. For anything that appears it may well have been identically the same question the objection to which was sutained. The court cannot be charged with error for refusing to permit the repetition of a question which already had been answered.

The defendant could not have been prejudiced by the action of the court in sustaining objections to questions asked the same witness on his cross-examination as to how the defendant got away from the place where he fell. That ruling did not result in depriving the defendant of the benefit of the evidence sought to be elicited by the question. By testimony subsequently introduced, and which was not contradicted or called in question in any way, he proved that he was taken home in a wagon.

The court Avas not in error in overruling the defendant’s motion to exclude the part of the testimony of the witness Chance in reference to a statement made to him by the defendant shortly before the killing to the effect that he Avas not going to stay there or make any crop. That evidence Avas admissible as having-some tendency to show the relations existing between the defendant and the deceased prior to and at the time of the fatal shooting. — Hudson v. State, 61 Ala. 333; Spraggins v. State, 139 Ala. 93, 35 South. 1000.

It Avas permissible for the solicitor, on the cross-examination of Mrs. Adams, a witness for the defendant, to bring- out the circumstance that she or her husband OAved the defendant an amount of money furnished by him for the purpose of paying a fine and costs assessed against the husband of the Avitness. This evidence was admissible for the purpose of showing a bias or interest on the part of the witness, and the court instructed the jury that it was to be considered by them only for that purpose. — Lodge v. State, 122 Ala. 97, 26 South. 210, 82 Am. St. Rep. 23.

The refusal of the court to give written charge 1 requested by the 'defendant Avas justifiable, because by that charge the jury were instructed that, in the event of their' finding that the state of facts existed- Avhich was hypothesized, they should acquit the defendant— not that they should not in such an event convict the defendant of murder in the second degree on the ground mentioned — and because it ignored other evidence in the case tending to show the defendant’s guilt of murder, without regard to the circumstance of the killing having been caused by the use of a deadly weapon which was concealed before the commencement of the difficulty.- — Parker v. State, 165 Ala. 1, 10, 51 South. 260.

The defendant could not have been prejudiced by the court’s refusal to give his refused charge 4, as he had the benefit of the proposition stated in it under written charges 2 and 4 given at his instance. For a like reason he cannot complain of the refusal to give charge 6, as a written charge bearing the same number and embodying substantially the same proposition was given at his request.

The court was justified in refusing to give written charge 8 requested by the defendant because of the reference in it to the defendant’s “special pleas.” The-court is presumed to have instructed the jury as to their duties in trying the issue made by the defendant’s plea of not guilty — the only plea interposed to the indictment. A reference in the charge to “special pleas” may be regarded as either improper or as calling for an explanation of what was meant by the expression. In either of these lights in which the use of the expression may be regarded, its presence in the charge justified the action of the court in reference to it.

The court was warranted in refusing to give charge 10 requested by the defendant, because it singled out part of the evidence in the case for the special consideration of the jury!

Charge 11 was properly refused, because it was calculated to convey the impression that it was the duty of the jury to acquit the defendant if the evidence referred to, considered by itself, not in connection with the other evidence in the case, did not satisfy them beyond a reasonable doubt of the defendant’s guilt.

The fact that the defendant’s charge 13 was in part unintelligible justified the court in refusing to give it.

Under charge 2 given at the request of the defendant he had the benefit of substantially the same proposition which was asserted in his written charge 15.

Charge 18 was faulty in failing to hypothesize, as a ground for relieving the defendant of the duty to re-' treat, the existence of an honest and reasonable impression or belief on his part of peril to himself in life or limb. — Storey v. State, 71 Ala. 329.

It was a fault in charge 21 requested by the defendant that it was so expressed as to be liable to convey the impression that the jury should base their finding as to whether or not the defendant was relieved of the duty to retreat upon the “greater weight” of the evidence in the case, considered by itself, not in connection with the other evidence in the case. It was calculated to withdraw from the consideration of the jury part of the evidence in the case having a bearing upon the inquiry referred to.

Charge 22 was properly refused, as there was no evidence on the subject of the defendant’s character.— Dryman v. State, 102 Ala. 130, 15 South. 433; Gater v. State, 141 Ala. 10, 37 South. 692.

Without inquiring whether charge 24 was otherwise faulty, it was properly refused because, under the statute, such an indictment as the one in this case would support a conviction of an offense below the grade of homicide included in the charge of murder.— Code, § 7315; Thomas v. State, 125 Ala. 45, 27 South. 920.

The court could not be required to give sucb an instruction as that embodied in the defendant’s charge 27, as it was capable of being understood as asserting that the presumption of the defendant’s innocence would be overcome by evidence from which the jury is satisfied beyond a reasonable doubt that the defendant “cannot be guilty.”

Charge 29 was so carelessly framed that it did not clearly express any proposition of law applicable to the evidence. The same criticism applies to charge 30 and 32.

•The proposition embodied in charge 33, conceding that it is clearly expressed, was covered by other written charges given at the request of the defendant.

It was not claimed in the argument of the counsel for the appellant that there was any error of which complaint could be made in rulings presented for review other than those above referred to. We discover in the record no error prejudicial to the appellant.

Affirmed.