96 So. 759 | Ala. | 1923
The defendant was convicted of murder in the first degree, and sentenced to imprisonment for life.
The trial judge properly excluded testimony that one Gibson, who was among the crowd who were present at the time and place of the killing, had a stick; it not appearing that Gibson or the stick had any connection with the killing.
It appeared without dispute that the deceased came out of the storehouse where he and the defendant, and a number of other people, had been, two or three minutes ahead of the defendant. Defendant's counsel asked a witness, who saw the killing and who had so testified, whether deceased, if he had gone on off when he went out there, would have had time to go away from the place before defendant came out. This question was properly excluded because it called for the opinion of the witness merely, and also because its relevancy was not apparent.
Defendant's question to his witness, Etta Baker. "What happened, if anything in the house [just prior to the killing outside] by Henry Owen [the deceased] with reference to the defendant?" was properly excluded, since the answer might have included any sort of irrelevant matter. The question was too broad.
Defendant testified that he "stayed in the house time enough for this man [the deceased] to go on off"; that is, before he went out himself. This statement was properly excluded because of its obvious implication that the deceased was under a duty to leave, or that his failure to leave was the cause of the killing. Moreover, the undisputed evidence showed that the deceased had ample time to have gotten away before defendant came out of the house, and the exclusion of defendant's statement to that effect could not have been prejudicial.
"Any conversation" had by defendant with the woman Etta Baker, just before the killing, was incompetent, and was properly excluded.
There was no error in the oral charge given to the jury. The parts excepted to stated elementary propositions as to the law of malice and self-defense.
Charge No. 8, on the right of self-defense, was fully covered by the general charge, and its refusal was not prejudicial error.
Charge No. 9, instructing the jury that under the evidence they were "authorized" to find the defendant guilty of manslaughter in the first degree, was clearly an invasion of the province of the jury, and was properly refused.
Charge No. 10 was both argumentative and abstract, and was therefore properly refused.
Charge No. 11 was faulty in affirming that the killing was excusable, upon the predicate alone that it reasonably appeared to the accused that it was necessary for his own defense. This ignored the other essential elements of self-defense, and also failed to define the circumstances constituting a necessity for killing. The charge was properly refused.
We find no error in the record, and the judgment of conviction will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.