Kirby v. State

44 So. 38 | Ala. | 1907

DENSON, J.

Under an indictment charging that “Jim Kirby unlawfully and with malice aforethought-killed John Fuller, whose name is to the grand jury otherwise unknown, by shooting him with a pistol,” Jim Kirby was tried and convicted of manslaughter in the first degree and sentenced to imprisonment in the penitentiary for a period of eight years. The record appears to be regular, and we shall write with respect to the rulings of the court on the admissibility of evidence and charges refused.

Groomster, the first witness examined for the state, made out a case of homicide without any provocation on the part of the deceased. In other words, on this witness’ evidence, self-defense could not be predicated. Therefore Avliether or not the deceased was armed or had a pistol in a scabbard that he Avas wearing, in the absence of a shoAving, or of an offer to show, by the witness, that deceased attempted to draw or use the pistol, or that he attempted to do violence to defendant, the court cannot be put in error for sustaining objections to questions, propounded by defendant to the Avitness, seeking to evoke such testimony in respect to the pistol. This coArers the first, second, third, and fourth exceptions.

In respect to all other exceptions (except the thirteenth) reseiwed to rulings made on questions propounded to the witness Groomster, the matters called for by the questions either transpired after the difficulty between defendant and Fuller, or are not shown to haAre transpired at the time of the difficulty, and are not shown to be a part of the res gestae. They are without merit.

The general character of Fuller for violence was not in issue at the time Groomster was asked if he knew the general character of the deceased for violence. Therefore the court did not err in sustaining the solicitor’s objection to the question, and the thirteenth exception is without merit.

Dr. Edwards was asked if he was called to see a man named Fuller. Objection was made on the ground that the question did not identify the deceased. If there was any merit in the objection at the time it was made, the witness subsequently identified the man he ivas called to see as John Fuller. For this reason the ruling of the court on the objection cannot be made ground for reversible error, and the fourteenth exception cannot avail defendant anything.

Taking Dr. Edwards’ evidence on the direct examination, together with that given by him on the redirect examination, it cannot be doubted that a sufficient predicate for the admission of dying declarations was shown, and the fifteenth and nineteenth exceptions are without merit. — Sims’ Case, 139 Ala. 74, 36 South. 138, 101 Am. St. Rep. 17.

Dr. Edwards testified that a portion of the statement made by the deceased ivas written down by witness, and he identified a paper writing, handed to him by the •solicitor, as containing the dying declaration of John Fuller, made to witness, and written by witness at the time the declaration was made. On the solicitor’s offer to introduce the paper writing, objection thereto was made on the ground — among others — that the writing-had been shown to be only a part of the statement made by the deceased. It was shown that the paper was not signed by the deceased. A dying declaration need not be reduced to writing to make it competent] but if reduced to writing, and the writing is actually in possession of tlie prosecuting attorney, these facts would not render parol proof of the declaration inadmissible. —Sitns’ Case, supra. So it would seem to follow that such declarations may well be evidenced partly by writing and party by parol. The paper in this case was properly admitted. The defendant could have drawn out, from the witness producing it, or even from others who were present, all else pertaining to the difficulty that was stated by the declarant; or, for that matter, the state might have done so, or the state might have proved by the witness the contents of the paper writing, and have offered the paper writing in evidence as a memorandum made at the time as a part of the witness’ evidence. At any rate, the writing was well admitted against the objection. — Sims’ Case, supra, and cases there cited; Krebbs’ Case, 8 Tex. App. 1; State v. Cameron, 2 Chand. (Wis.) 172; People v. Glenn, 10 Cal. 32; Collier v. State, 20 Ark. 36; Com. v. Haney, 127 Mass. 455; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200.

The fact that the deceased used profane language before and after making the declarations cannot affect their admissibility. This is responsive to the eighteenth exception.

It is clear that evidence as to what was done by Crozier and Reed, or by either of them, after the defendant left the place where the killing occurred, was incompetent, and the twentieth and twenty-first exceptions are without merit.

Defendant testified: “We had a difficulty the night before at No. 4.” Conceding that the difficulty referred to was between the deceased and the defendant, the particulars of it were not a proper subject of inquiry, and the twenty-second exception presents no ground for reversal. — Harkness’ Case, 129 Ala. 71, 30 South. 73.

Whether or not Crozier and Reed were present at the previous difficulty between defendant and deceased was immaterial, as was also the fact as to a previous difficulty between defendant and Crozier and Reed. That Crozier and Reed, or either of them, shot the defendant after the difficulty in which defendant killed the deceased, was immaterial to any issue in the case. In this view, the twenty-fifth exception is not well taken.

Reed and Crozier are not shown by the evidence to have participated in the difficulty between deceased and defendant; and we have been unable to see what light evidence of previous threats by them against the defendant could have thrown on the case, and it must be held that the twenty-sixth exception is without merit.

The court properly limited Dr. McCrory’s testimony to his examination of wounds on Kirby which were inflicted upon him in the difficulty with Fuller. This covers the twenty-seventh, twenty-eighth, and twenty-ninth exceptions.

The questions asked witnesses Brown and N. A. Walker Avere clearly subject to the objections made to them by the state, and the thirtieth, thirty-first, and thirty-second exceptions are Avithout merit.

The objection to the question asked Avitness Butler by defendant Avas properly sustained. The question does not connect or purport to connect the two men inquired about with the prosecution or Avith any Avitness who testified in the case. This ansAvers the thirty-third exception.

The court was required by the defendant to put the general charge in writing, and it is set out in full in the bill of exceptions. At the conclusion of the charge the bill of exceptions shows that the defendant reserved an exception in this language: “To Avhich written charge the defendant then and there duly excepted, to the same as a whole, and to each and eArery part thereof separately.” That the charge as a whole is not erroneous is demonstrable by a mere reading of it. The exception, “to each and every part thereof separately,” is too indefinite to present for consideration any particular part of the charge. The defendant by this sort of exception would leave it to the court, if to any one, to say how the charge should be parted in order that his exception should be considered, and this is no part of our duty. While the law requires this court to consider a criminal cause on appeal without an assignment of errors, and even without a brief being filed, it does not require us to form the defendant’s bill of exceptions, nor to so divide a general charge of the court into parts that a reversible error may be found. “A party excepting must make his exceptions so specific that the matter relied on as error will be apparent to his adversary and to the primary court.” The exception as shown by this record amounts to no more than a general exception.— Irvin’s Case, 50 Ala. 181; Cohen’s Case, Id. 108; Elliott v. Dycke, 78 Ala. 150, 157; Mayberry v. Leech, Harrison & Farwood, 58 Ala. 389, 342.

The defendant requested the court to give 43 written charges, 20 of which were given, and 23 refused.

The eighth and ninth refused charges are bad, for failure to set out the ingredients of self-defense.

The tenth, eleventh, and thirteenth refused charges ignore freedom from fault; and the thirteenth also ignores necessity for taking life of deceased.

The fifteenth charge invades the province of the jury.

The sixteenth, seventeenth, and thirty-fourth refused charges are so patently bad as to require no discussion. —Dennis’ Case, 118 Ala. 72, 23 South. 1002.

The eighteenth charge refused to defendant has been many times condemned.

Refused charge 21 is bad. It is misleading, in that the jury might have been led to the belief that they should be satisfied of the defendant’s guilt; and to require proof to the satisfaction of the jury would be to exact too high a degree of proof. — McCormack’s Case. 133 Ala. 202, 32 South. 268; Dennis’ Case, 118 Ala. 72, 23 South. 1002.

Charge 29, refused to defendant, is bad, and was properly refused. — Hughes’ Case, 117 Ala. 25, 23 South. 701 (charges 17, 18, 16, and 17).

Refused charges 30 and 31 are argumentative.

Refused charge 39 is argumentative, and there is no attempt to apply it to the facts of the case.

Charges 10, 12, and 11 are abstract, and otherwise inherently bad.

Charge 16 refused to defendant is frivolous. It ignores every ingredient of self-defense.

Charges 17, 18, and 19 of defendant’s series were properly refused. Each ignores peril to life or danger of grievous bodily harm, and ignores honest belief by defendant that he was in peril to his life or was about to suffer grievous bodily harm. — Kennedy’s Case, 140 Ala. 1, 37 South. 90; Wilson’s Case, 140 Ala. 43, 37 South. 93; McClellan’s Case, 110 Ala. 99, 37 South. 239.

The record contains no reversible error, and the judgment of. conviction is affirmed.

Affirmed.

Tyson, C, J., and Haralson and Simpson, JJ., concur.