Kirkwood v. State

62 So. 1011 | Ala. Ct. App. | 1913

WALKER, P. J.

— Some of the questions presented may be disposed of by a reference to the rulings made when the case ivas in this court on a former appeal.— Kirkwood v. State, 3 Ala. App. 15, 57 South. 504.

On proof that one Tom Dye was out of the jurisdiction of the court, evidence of his testimony as it was given in a former trial of the case was admitted. It is contended for the appellant that parts of that testimony, which referred to a former difficulty between the deceased and the appellant, were improperly admitted. The bill of exceptions does not show that in the trial which resulted in the judgment now appealed from any exceptions were reserved to the rulings of the court in admitting such parts of that testimony. This being-true, the action of the court in that regard is not presented for review. The report of the testimony of that witness on a former trial, which in the last trial was made use of in proving what he had formerly deposed to, showed the reservation in the former trial of exceptions, which the bill of exceptions, which is made a part of the record now under consideration, does not show were reserved on the last trial. The present appeal does not present for review such rulings made on the former trial, and excepted to only at that time.

We find no merit in other objections suggested to rulings on evidence made by the court.

The court, did not err in the part of its oral charge to the jury, which stated the form of the verdict to be rendered in the event the jury should fix the punishment of the defendant at imprisonment for more than two years. Besides, the appellant is not in a position to complain of that part of the charge, as the proposition stated in it was rendered inapplicable by the action of the jury in fixing the period of imprisonment.

Neither of the other exceptions which were reserved to portions of the oral charge can be sustained, as each portion of the charge so excepted to contained one or more unobjectionable statements or propositions.

Though written charge 15, requested- by the defendant, is substantially a copy of a charge which was approved in- the case of Bluett v. State, 151 Ala. 41, 44 South. 84, it was properly refused in this case, as it was abstract in so far as it hypothesized the previous making by the deceased of threats against the defendant. There was no evidence tending to prove that the deceased had made threats against the defendant. The court’s refusal to give written charge 14 is justifiable on the same ground.

Charge 16, refused to the defendant, stated no proposition of law, and was invasive of the province .of the jury. It was properly refused.

Conceding that written charge 17 properly stated a proposition which the defendant was entitled to have given in. charge to the jury, the proposition was one which was covered by other instructions given at the defendant’s request, and he could not have been prejudiced by the court’s refusal to repeat the proposition.

It is enough to justify the court’s refusal to give written charge 22, requested by the defendant, that an expression contained in it was calculated to convey the impression that one is never under a duty to retreat beyond the confines of the town or village in which he resides. The law puts no such limitation upon one’s duty to retreat to avoid taking the life of another.

The argumentative features in charges A and B, requested by the defendant, justified the court’s refusal to give them.

Written charge 24, requested by the defendant, was so expressed that it might have been understood as asserting that one who was in danger of death in a former difficulty is under no duty to retreat when his adversary renews the difficulty, though he is in no' danger when the difficulty is renewed. It was not error- to refuse to give that charge.

We find no prejudicial error in the record.

Affirmed.