Ingram v. State, 67 Ala. 67

67 Ala. 67 | Ala. | 1880

STONE, J.

— The testimony is that the load, with whieh the gun was charged, entered the left breast of the deceased, just above the region of the heart, inflicting a wound, into which the witness testified he could insert his three fingers. Deceased expressed the conviction he would die. We think there can be no doubt the declarations were made under a conviction of impending death. Faire v. The State, 58 Ala. 74, and authorities cited. Part of the declaration of the deceased was in reply to a question asked him. This precise question has been several times before the English courts, and it was ruled that the fact that the declaration was made in reply to an inquiry did not render its admission illegal. Sharswood’s Buss, on Crimes, 3 vol. 262-4; Moore v. The State, 12 Ala. 764; McHugh v. The State, 31 Ala. 317.

We are unable to perceive any principle which would justify the admission of evidence that “immediately after the shooting, fifteen or twenty colored men marched in procession in Childersburg, and made demonstrations of hostility.’! This could not possibly shed any light on the factum or intent of a transaction then passed.

Much latitude is allowed in the cross-examination of witnesses, and much must be left to the enlightened discretion of the court. No uniform, universal rule can be laid down. Much wider liberty of cross-examination is permissible, when the witness betrays partisanship, or partiality, than when he narrates the facts with prompt indifference, whether they favor the one side or the other. Hence, it must be a strong case to justify reversal, for too great latitude allowed in cross-examination. — 1 Greenl. Ev. § 449; Stoudenmeyer v. Williamson, 29 Ala. 558; In re Carmichael, 36 Ala. 514. A witness had sworn he knew the general character of the prisoner for peace and quietude in his neighborhood, and that it was good. On cross-examination he was asked if he had not heard that the defendant had killed a man in the State of Georgia. He was allowed to answer this questien against the objection and exception of defendant. In 1 Best, on Ev.- § 261, is the following paragraph : “In R. v. Wood, (5 Jurist, 225), the prisoner, who was indicted for a highway robbery, called a witness, who deposed to having known him for years, during which time he had, as witness said, borne a good character. On cross-examination it was proposed to ask the witness whether he had not heard that the prisoner was suspected of having committed a robbery, which had taken place in the neighborhood some years before. This was objected to as raising a collateral issue ; but Parke, B., overruled the objection, saying, ‘The question is not whether the prisoner was guilty of that robbery, but whether he was suspected of having been implicated in it.’ A man’s character is made up of a number of small circumstances, of which his being suspected of misconduct is one.” The question was allowed, and the prisoner convicted. We approve this principle and the reason given for it, and hold that the Circuit Court did not err in receiving this evidence. In estimating character, the shadings as well as the brighter hues should be considered. They all go to make up character — reputation — the estimation in which the person is held. But it is only character, and not the particulars or details of independent acts, which can be inquired into.

The presence of deceased in Ohildersburg on that day, away from the place he was hired to labor, was, of itself, an immaterial circumstance in this trial.

In the two charges given, the Circuit Court only followed the law as declared in many rulings of this court. — Judge v. The State, 58 Ala. 406; Mitchell v. The State, 60 Ala. 26; Ex parte Brown, in manuscript.

Charges numbered 4 and 5 asked, ignore entirely the question of any other safe mode of escape. Human life is not taken with impunity, if the slayer provoked the difficulty, or failed to retire from it when he could have done so without endangering his life, or exposing himself to grievous bodily harm. When the accused stepped back, so as to afford him space to level his gun, he had placed the deceased at such a disadvantage, as that any attempt at aggression by the latter could have been easily averted. It is not shown that the deceased made any movement forward, or attempted to do so; nor is it shown that he raised his arm from its pendent position. The only eye-witness of the homicide fails to state any thing of the kind. One having a loaded gun pointed at another, who is not advancing, can not be in present imminent peril of life or limb, even though that other have an open knife in bis band. The 6th charge asked is involved and calculated to mislead, if, indeed, it is not abstract.— Cross v. The State, 63 Ala. 40; McNeezer v. The State, Id.

Affirmed.