Johnson v. State, 62 So. 450

WALKER, P. J.

— When this case was here on a former appeal, the court in the opinion then rendered made a general statement of the' circumstances of the fatal difficulty which is in question and of the tendencies of the evidence in reference to it which is applicable to the case as it was presented in the trial which resulted in the judgment now to be reviewed. — Johnson v. State, 4 Ala. App. 47, 57 South. 593.

When the defendant proposed to examine one Lula Jackson as a witness, the solicitor objected to his being permitted to do so because the proposed witness had been in the courtroom during the progress of the trial, and the defendant excepted to the action of the court in sustaining the objection and refusing to permit the witness to be examined. When the objection Avas made, the attorney for the defendant disclaimed any information or lmoAvledge of the fact that the Avitness had been in the courtroom during the progress of the trial, saying that “they didn’t particularly know the AAitness, * * * and that no doubt the Avitness was there without knoAving of the duty being imposed upon her to go out”; and the court stated, as is recited by the bill of exceptions, “that he had no doubt but that the Avitness did not understand the rule, and Avas innocently in the courthouse; the judge presiding had observed said Lula Jackson sitting near the aisle in plain vieAv of every one in the courtroom fully a day during the progress of the trial Avith a nursing baby in her arms; she had listened attentively to practically all the testimony up to the time she Avas called as a witness.” It is not. made to appear that the Avoman had been subpoenaed as a witness, or that Avhen the rule was invoked, or when the witnesses were by the court instructed with reference to their duties under it, Lula Jackson was called as a witness, or that the defendant in any way made known to the court that a person of that name was proposed to he made a witness in the case. For anything that appears, her continued presence in the courtroom may have been attributable to the defendant’s neglect to let it he known at the proper time that she was to he examined as a witness, and the consequent failure of the presiding judge to see to it that her duty under the rule was brought- to her attention. The proposition announced in the opinion rendered in the case of Degg v. State, 150 Ala. 3, 43 South. 484, to the effect that, when the rule is invoked as to witnesses and is violated by a witness without any fault on the part of the defendant, the court has not the right to deprive the defendant of the testimony of such a witness, is not applicable to such a state of facts as that disclosed by the present record.

What is disclosed by the bill of exceptions by no means negatives the conclusion that the court was warranted in finding that the nonohservance of the rule by the proposed witness was due, in whole or in part, to the fault of the defendant himself. If so, he Avas not entitled, as a matter of right, to examine the Avitness for Avhose nonohservance of the salutary precaution he himself Avas at fault. Whether or not in such a situation a party so at fault is to he permitted to adduce the testimony of the Avitness in question is a matter resting in the discretion of the trial court. To hold otherAvise Avould unduly impair the authority of the court to enforce a regulation having for one of its objects the guarding of Avit-nesses against improper influences or suggestions to Avhicli they might be subjected if they Avere permitted- to remain in the courtroom ■during the progress of the trial. It is not made to appear that the court abused its discretion in declining to permit the proposed witness to testify. The statement made by counsel as to the testimony expected to be elicited from this witness showed that it was in reference to a matter as to which several other witnesses for the defendant had deposed. So it appears that the excluded testimony would have been mostly, if not altogether, cumulative. The ruling in question is not a ground of reversal. Other rulings made on objections to testimony are presented for review. We discover no reversible error in either of those rulings. None of the questions so raised are deemed to be of such a nature as to call for a discussion of them.

The failure of charge 8 requested by the defendant to predicate his freedom from fault in bringing on the difficulty justified the court’s refusal to give it.

Defendant’s written charge 9, as it is set out in the bill of exceptions, is not, as is stated by counsel in their brief, a copy of the charge, the giving of which was held in the case of Holt v. United States, 218 U. S. 245, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138, not to constitute a ground of reversal when the defendant’s exception to the court’s charge was a general one. The charge as it is set out commences with a sentence which, because of the use of one word where another probably was intended, is incomplete and really conveys no meaning. This was enough to justify the court in refusing to give the charge in the form in which it was presented. —Gambill v. Fuqua, 148 Ala. 448, 42 South. 735; 38 Cyc. 1598, 1599. Besides, whether part of the charge was so expressed, that it might have been understood as authorizing the jury to acquit the defendant if they should “feel uncertain about his guilt,” and it is not intended to be intimated that it would have been a reversible error to refuse to give the charge if it bad been free from the fault first mentioned.

The evidence in the case was in conflict on the question of the defendant’s being in any danger at the time he shot the deceased. Written charge 14 was properly refused because it involved the assumption that the defendant was in danger.

Charge 16 requested by the defendant is another instance of a miscopied charge. Counsel for the appellant call our attention to the close resemblance between this charge and a charge Avhich was approved in the case of Bluett v. State, 151 Ala. 41, 44 South. 84; Bluitt v. State, 161 Ala. 14, 49 South. 854. The concluding sentence of the charge as requested, in stating in effect that, if the fact that the defendant was not free from fault in bringing on the difficulty was “not shown to the satisfaction of the jury to a reasonable doubt, the jury should acquit the defendant,” involved such inaccuracy and obscureness as plainly to justify the court in refus- . ing to give it in charge to the jury.

Charge 18 was properly refused as it ignored the question of the defendant’s duty to retreat, if retreat was practicable without increasing his peril. Counsel for the appellant refer to the decision in the case of Harris v. State, 96 Ala. 24, 11 South. 255, as supporting their contention that this charge should have been given. In there deciding that a similar charge should have been given, the court pointed out the fact that under the evidence in that case the defendant was under no duty to retreat. In the present case there was evidence tending to prove that the defendant by retreat could have avoided any peril to himself or to the deceased.

Counsel for the appellant contend that refused charge 31 is the same as refused charge 2, which was ruled on in the case of Griffin v. State, 165 Ala. 29, 50 South. 962, except that the fault which was held to have justified the refusal to give the charge requested in that case has been removed. The contention is not well founded. In pasing on the charge under review in the case cited, the court expressed the opinion that the jury would have had the right to treat its concluding paragraph as a complete statement of the proposition which in the preceding part of the charge had been stated with more detail, and the charge was condemned because of a fault pointed out in that summary re-statement of the proposition. The charge now under consideration is so far a copy of refused charge 2 in the Griffin Case that its concluding paragraph is to be construed as serving the same purpose Avhich was treated as having been served- by the concluding paragraph of the charge copied from. The concluding summary statement of the- charge under consideration is to the effect that, if from all the evidence in the case the jury have a reasonable doubt whether the danger apparently was so imminently present at the time of the killing that a reasonable and prudent man, situated as the defendant was, would believe, and the defendant did believe, that it was necessary to kill in order to avoid the loss of life or to prevent great bodily harm, then the jury must acquit him. While the proposition as thus stated avoided the particular fault Avhich Avas pointed out in the opinion in the Griffin Case, it contained another fault, justifying the refusal of the court to give it in charge, in that it ignored the question of the defendant’s freedom from fault in bringing on the difficulty. The evidence in the case Avas such that that question was one not proper to be withdraAvn from the consideration of the jury. The stated hypothesis for a verdict of acquittal was materially defective, and the charge was properly refused.

Complaint is made of the court’s refusal to give several other written charges. The refusal to give each of those charges is justifiable either because it stated an incorrect proposition or one that was covered by other written charges given at the defendant’s request.

A careful examination of the record has led us to the conclusion that the prosecution was conducted in accordance with the law; that the defendant had a full and fair opportunity to present his version of the occurrence under investigation; and that the court committed no error which would warrant a reversal of its judgment. No right of the appellant is denied him by this court’s failing to make a special mention of all the questions presented for review.

Affirmed.

Case Details

Case Name: Johnson v. State

Court Name: Alabama Court of Appeals

Date Published: May 20, 1913

Citations: 62 So. 450; 8 Ala. App. 14; 1913 Ala. App. LEXIS 117

Court Abbreviation: Ala. Ct. App.