56 So. 89 | Ala. Ct. App. | 1911
The deceased, Frank Lewis, was a negro youth, about 19 years of age, who was employed by the defendant as a laborer or servant. He was engaged in service about the defendant’s residence. That he came to his death as the result of a shot fired from a gun in the hands of the defendant is a fact about which there was no dispute in the trial. The conflict in the evidence was as to the circumstances of the shooting. The evidence offered by the prosecution was .to the effect that the deceased ran out of the defendant’s residence; that he was followed by the defendant, who* had the gun in his hand; that the defendant called to the deceased to come back, and shot him when he was about 10 feet away.
The version of the affair given by Mrs. Ellen Know-lean, the principal witness for the defendant, was as follows : “The first I knew of any difficulty, Mr. Lunsford was sitting in his dining room, which opens on the back porch. Frank came up on the porch, and said, ‘Have you got any money?’ Mr. Lunsford said, ‘Yes; I generally have a little; why?’ Frank said, “I want some.’ Mr. Lunsford said, ‘Where did you get those eggs from?’ Frank replied in an insolent manner: ‘It’s none of your business. Other people have eggs besides you.’ Mr. Lunsford said: ‘All right; we will go and look at them, and see whose they are.’ Frank said, ‘It’s none of your business whose eggs they are, and I won’t show you.’ Mr. Lunsford reached over towards a gun in a corner, and Frank ran out into the yard. Mr. Lunsford came out on the porch with the gun in his hand, hanging down by his side; and walked down on the ground, and said, ‘Gome back, and go with me to see those eggs.’
On cross-examination of one of the witnesses for the state; and on the direct examination of a witness for the defendant, his counsel asked questions whereby he sought to elicit proof that defendant, “within two minutes after the shooting, ran into the house and stated to members of his family that he had unintentionally shot Frank Lewis, and asked them for God’s sake to help him save his life”; also of defendant’s efforts,- after he had been in the house, to stop the flow of blood
It is insisted in tlie argument of the counsel for the appellant that the court was in error in excluding proof of the above-mentioned acts and declarations subsequent to the shooting. It is urged that those acts and declarations constituted part of the res gestae, and as such could properly he proved. In this view we cannot concur. Under the rulings in this state, such declarations or acts, so separate in point of time and place from the main, transaction which is the subject of investigation, are not to be regarded as parts of that transaction.—Pitts v. State, 140 Ala. 70, 37 South. 101; Nelson v. State, 130 Ala. 83, 30 South. 728; Harkness v. State, 129 Ala. 71, 30 South. 73; Hill v. State 156 Ala. 3, 46 South. 864. Frequently it is a matter of difficulty to determine whether acts or declarations of one of the parties to a transaction, not strictly coincident' with the central fact of the occurrence, are so related to it as to illustrate or explain it and to be in reality parts of the one transaction, or stand apart from it as subsequent events. In considering whether certain declarations which had been offered in evidence were to be regarded in the one light or the other, it was said, in the opinión in the case of Nelson v. State, supra: “And
At the time of the declarations and acts here sought to he proved, the shooting in question was a thing of the past. One of the parties had gone one way; the other another. They were no- longer in the presence of each other. The incident was closed. The court could not say with reasonable certainty that the declarations and acts sought to be proved were the unpremeditated results of what had happened betAveen the deceased and the defendant, rather than the results of a subsequent design on the. part of the defendant, quickly formed Avhen the deceased was no longer in his presence, to give the occurrence an aspect favorable to himself and to minimize as far as possible its disasterous consequences. The question of the admissibility of the proposed proof Avas one for the court. It could not be put in error because of its action in excluding it, unless this court would be justified in affirming that it appears with reasonable certainty that the declarations and acts sought to be proved were spontaneous and unpremeditated accompaniments of the main facts of the occurrence, explanatory of the conduct and purposes of the participants, and that, for lack of sufficient time to afford an
The acts and declarations of the defendant subsequent to the shooting, which were proposed to be proved, were properly excluded, because it could not with reasonable certainty be affirmed that they were spontaneous, unpremeditated, proximate results of the occurrence of which the shooting was the culminating incident, and that they could not have been attributable to motives or impulses on the part of the defendant afterwards coming into play. Subsequent acts or declarations of a participant in an occurrence are not lightly to be declared integral parts of it, pertinent on an inquiry as to its real nature or character, as shedding light upon the influences which were controlling in bringing to pass what was done, where they may as well be traced to an origin, in whole or in part, in thoughts or feelings arising on and after contemplation of or reflection about what already had happened, as to the incentives to which the conduct of such participant which is under consideration may be attributable.' Declarations the proof of which should be excluded under the rule against hearsay testimony are not to be'permitted to slip in
We are unable to discover any evidence in this record having a tendency to prove that the shooting was a voluntary act on the part of the defendant done in self-defense. The evidence offered by the state was to the effect that the shooting was under circumstances which wholly precluded any claim on behalf of the defendant that it was done in self-defense. The tendency of the evidence introduced in behalf of the defendant was to prove that the shooting was the result of the deceased grabbing or jerking the gun, and not at all attributable to a purpose or intention on the part of the defendant to shoot the deceased. In the most pointed and unequivocal manner, the defendant, by the evidence he introduced and also by his offers of proof which the court excluded, made plain his purpose to disclose the occurrence in question to the court and jury under such an aspect as to exclude' an inference that the shooting was in any sense a voluntary and intentional act on his part. There was no hint in the evidence of a claim on the part of the.defendant that the fact was that he intentionally shot the deceased, but that his act in so doing was excusable, because it was really or apparently necessary for the defense of himself. -Charges dealing with the law of self-defense may properly be refused as abstract in a homicide case from which there is absent any evidence tending to prove the existence of a state of facts upon which the defendant could legally base a claim that the killing was in self-defense.—Thomas v.
The propositions asserted in charge 19, refused to the defendant, were fully covered by other written charges given at his instance,, and he could not have been prejudiced by the refusal of the court to reiterate in slightly varying phraseology propositions already stated to the jury in writing.
The defendant’s written charge 20 was properly refused, because it predicated a right of acquittal upon the facts there hypothesized. The charge was calculated improperly to confine the attention of the jury to the exact time when the shooting took place. If the jury found from the evidence that it was preceded by, resulted from, or was an incident of, an unlawful act of the defendant in following the deceased with a loaded gun, they would have been justified in convicting him of an offense embraced in the indictment, though they found from the evidence that the death of the deceased was unintentional, or accidental, and that it was in a measure due to his own fault.—Barnes v. State, 134 Ala. 36, 32 South. 670; Thompson v. State, 131 Ala. 18, 31
Affirmed.