James v. State, 67 So. 773

67 So. 773 | Ala. Ct. App. | 1914

THOMAS, J.

The statement of the witness Dr. Hodge (who, after the shooting, professionally attended the deceased), to the effect that defendant came for him to do so, was properly excluded on motion of the solicitor ; and this for two- reasons: First, because such statement was not in response to any question that had been propounded to the witness; and, second, because it does not appear that defendant’s act in going for the witness was any part of the res gestae of the crime.—Maxwell v. State, 11 Ala. App. 53, 65 South. 734; Dick v. State, 87 Ala. 61, 6 South. 395; Lundsford v. State, 2 Ala. App. 41, 56 South. 89. For the latter reason, it was likewise not error for the court to decline to permit the defendant to state that he went for the doctor to attend deceased. — Authorities supra.

The declaration of the defendant, alleged to have been made immediately after the shooting, to the effect that he did not intend to shoot deceased, was entirely self-serving, and, consequently, inadmissible, unless shown to have been so closely connected with the main fact that it may be affirmed by the court with reasonable certainty that it formed part of the res gestee.—Lundsford v. State, supra, and other authorities supra.

It appears that the shooting took place at the horse lot on the premises of defendant’s parents near the dwelling house thereon, where the parties resided with defendant’s parents (the defendant being a son and the deceased being a hired girl living in the family) ; that there had been no ill will or bad feeling between the two; that on the occasion in question they had gone to the lot, the former to feed the mule and the latter to give shucks to the cow; that while they were out there the pistol shot was fired that hit deceased and from which she subsequently died; that defendant’s mother, who was in the house at the time, did, immediately on hearing the shot, call out from the house to the parties in the lot and inquire as to what was the matter; that deceased replied that defendant had shot her; and that defendant replied that he “did not go to do it.” It would seem that this declaration on his part, made immediately after the shooting, at the scene thereof, in the presence of deceased and under the circumstances as detailed was admissible as a part of the res gestee; since acts and declarations may form part of the res gestse, though not in point of time exactly coincident with the main fact, provided they stand in the relation of unpremeditated results and were produced by and instinctive upon the occurrences to which they relate, rather than the retrospective narration of such occurrences.—Nelson v. State, 130 Ala. 83, 30 South. 728; Lundsford v. State, 2 Ala. App. 38, 56 South. 89; 1 Mayf. Dig. 772.

However, while it does appear that the solicitor moved to exclude the testimony of defendant’s mother, who, testifying as a witness for him, stated that the defendant said at the time mentioned that he “did not go- to do- it,” yet it does not appear that the court ever acted on this motion, and consequently, for aught to the contrary appearing, the declaration remained in as evidence. Consequently, no ruling of the court is presented for review in this particular.

There were only two persons present at the time of the shooting — deceased and defendant. The dying declarations of deceased were to the effect that defendant asked her to assist him in shucking some corn, that she refused, and that he immediately shot her as she turned to go; while the statement of defendant, as a witness for himself, was to the effect that while he and deceased were at the lot he was “projecting” with a pistol which he did not know was loaded, and that deceased was shot as a result of its accidental discharge.

If the testimony of the deceased be believed, then the defendant intentionally shot her and was, under the law, guilty of nothing less than murder, because no provocation short of a battery or an assault can reduce an intentional killing to manslaughter in the first degree.—Judge v. State, 58 Ala. 406, 29 Am. Rep. 757; Nutt v. State, 63 Ala. 180; Martin v. State, 119 Ala. 1, 25 South. 255; Prior v. State, 77 Ala. 56; Grant v. State, 62 Ala. 233.

On the other hand, if the testimony of defendant be believed, then the killing was entirely accidental, and he is guiltless in the eyes of the law, unless he either intentionally pointed the pistol at deceased or handled it — a dangerous weapon — with gross negligence, in either of which latter events he would be guilty of involuntary manslaughter, although the shooting was, as he contends, an accident.—Gibbs v. State, 7 Ala. App. 32, 60 South. 999; Johnson v. State, 94 Ala. 41, 10 South. 667; Sanders v. State, 105 Ala. 4, 16 South. 935; Fitzgerald v. State, 112 Ala. 40, 20 South. 966; Medley v. State, 156 Ala. 78, 47 South. 218.

Hence, under the law as applicable to the evidence, the defendant could only be guilty of either murder or involuntary manslaughter. There was no theory of the evidence upon which he could be convicted of manslaughter in the first degree, of which he was found guilty by the jury. However, although this be true, we are of opinion that the court did not err in this case in refusing to give the following written charge requested by defendant, to wit, “The court charges the jury that, under the evidence in this case, you cannot find the defendant guilty of manslaughter in the first degree,” because, as has been often held, such a charge is confusing and misleading as applied to a case where the offense charged is, as here, divided into degrees, since the charge omits to require a consideration by the jury of the other degrees charged.—Stoball v. State, 116 Ala. 454, 23 South. 59; Olive v. State, 8 Ala. App. 178, 63 South. 36.

Charges 2 and 6 were each properly refused, since each predicated an acquittal of defendant upon a belief by the jury that- the shooting was accidental and ignored the question as to whether or not he was intentionally pointing the gun at her, and, if not, as to whether in handling it he was or not guilty of gross negligence. —Authorities supra.

Charge 7 ignores the consideration of the whole evidence. .

Charge 12, if not otherwise faulty, is argumentative.

We find no error in the record, and the judgment of conviction is affirmed.

Affirmed.