Mathis v. State
73 So. 122
Ala. Ct. App.
1916
Check Treatment
EVANS, J.

(1-4) Aрpellant was convicted of murder in the second degree for killing one Simmie Daniels. It is insisted that the trial court erred in the admission of the testimony of Dr. J. H. Flowers, tending to prove the range of the shot, in that the witness had not qualified as an expert. Dr. Flowers testified that he was a practicing physician in Houston county, and had professionally attended the deceased when he was shot. Whether a witness is shown to possess the requisite qualifications to speak as an expert is a preliminary question, largely within the discretion of the trial- court. — Tesney’s Case, 77 Ala. 33; White’s Case, 133 Ala. 122, 126, 32 South. 139; Barlew’s Case, 5 Ala. App. 290, 294, 57 South. 601. Aside from this, the question of the range of a bullet or load of a gun does not necessarily involve or call for expert knowledge; it may, perchance, be open to observation or be ascertainable upon examination by а nonexpert and testified to as any other fact. — Reid’s Case, 181 Ala. 14, 61 South. 324; Sanders’ Case, 134 Ala. 74, 32 South. 654. It is not competent for a witness, expert or nonexpert, to draw infer-' eneеs for the jury from the slant or angle of the wound as to the relative positions of the combatants when the fatal shot was fired. This would be invasive of the province of the jury and a matter of which they would be quite as competent to judge as the witness, having been given a description of the wound. — Dumas’ Case, 159 Ala. 42, 49 South. 224, 133 Am. St. Rep. 17; McKee’s Case, 82 Ala. 32, 2 South. 451. But we do not think the testimony of Dr. Flowers trenched upon the prerogative of the jury in this respect in his answer that: ‍‌​​​​​‌‌​​​​​​​‌​‌​​​​​‌​​​​​‌‌‌‌‌​​​​‌​‌​‌‌​​​​‍“It [the load] didn’t look to be shot right straight in front; it looked to be a little bit that way (indicating).”

This was merely an eifort to describe the character of the wound and the range the load took.

(5-7) It is argued that a proper predicate was not laid for the introduction of the dying declaration of the deceased, because it is not shown that deceased was rational at the time. *249 While dying declarations should be cautiously received, it is sufficient if, from the preliminary facts, it is made to appear to the trial court that at the time of the declaration by the deceased, he was under a sense of impending death, and had abandonеd all hope of recovery. If at the time of the declaration the declarant was flighty or not entirely rational from opiates, drugs, or other cause, that fact could be shown, and would go to the weight and credibility of the declaration, instead of tо its com petency. — Gilmer’s Case, 181 Ala. 23, 61 South. 377; Justice’s Case, 99 Ala. 180, 13 South. 658; Underhill’s Criminal Evidence (2d Ed.) § 112. Of course, if the preliminary facts should reveal that, at the time of the supposed declaration, the state of declarant’s mind or .reason was such as to render him pro hac'vice incompetent as a witness, this would be a matter for the ‍‌​​​​​‌‌​​​​​​​‌​‌​​​​​‌​​​​​‌‌‌‌‌​​​​‌​‌​‌‌​​​​‍trial court and, on a proper showing, justify the rejection of the so-called declaration. The burden, however, is not upon the state in presenting its predicate to show that the declarant was rational, for this will be presumed; it is upon the defendant to show that he was not.

(8) Conceding the materiality of the question to Nelson Daniels (transcript page 7), as to whether he had testified on the preliminary examination, the ruling of the court was rendered innocuous by witness’ answer to the same matter оn page 8, transcript. — Francis’ Case, 188 Ala. 39, 45, 65 Southfl 969.

(9, 10) The threats of the appellant — as testified by several witnesses — that he was going to kill one of the Daniels were not improperly admitted as being too indefinite. Whether these threats, when taken in connection with the other .evidence, had reference to the deceased, was a question for the jury. — Mont gomery’s Case, 160 Ala. 7, 24, 49 South. 902; Olive’s Case, 2 Ala. App. 77, 57 South. 66; Ford’s Case, 71 Ala. 385, 396.

(11) The objection to the question propounded to Will Kannady on the ground of the insufficiency of the predicate was not well taken. The question reads: “That same evening of the shooting, nobody being present but you and these - three men [Wes Jackson, Jack Daniels, and Nelson Daniels], ‍‌​​​​​‌‌​​​​​​​‌​‌​​​​​‌​​​​​‌‌‌‌‌​​​​‌​‌​‌‌​​​​‍and after you had carried the shot man up there [Nelson Daniels’ house] didn’t you say,” etc.

The above italicized portions of the question apprised the witness of the time, place, and persons involved. In Burton’s Case, 115 Ala. 1, 22 South. 585, a predicate was held sufficiently *250 definite and certain that asked the witness if she had not made certain statements bеfore the coroner’s inquest and before the grand jury. See, also, Phillips’ Case, 11 Ala. App. 168, 65 South. 673.

(12, 13) It is insisted that the court erred in sustaining the objection to the questiоn asked defendant’s witness Will Kannady on redirect examination: “You say he [deceased] had his knife in his hand when he went in that gate, when hе opened that gate ?”

The same matter was testified to on this witness’ direct examination, and the court cannot be put in errоr for not permitting ‍‌​​​​​‌‌​​​​​​​‌​‌​​​​​‌​​​​​‌‌‌‌‌​​​​‌​‌​‌‌​​​​‍a repetition of it on the redirect examination, nor from the fact that the question, as framed, was leading.

(14) Thе question by the state to impeaching witness Jake Daniels was faulty, in that it did not substantially follow the predicate laid iri the testimony of witness Kannady, directing the mind of the impeaching witness with definiteness to the particular matters about which it was sought to impeach Kannady (McDaniel’s Case, 166. Ala. 7, 52 South. 400) ; but this particular objection was waived by assigning other objections.

(15-21) Written requests to charge 1, 5, and 7 were substantially covered by given charge No. 4. Refused requests 18 and 19 were substantially covered by given charge 17. Request No. 6 was properly refused as pretermitting the question of freedom from fault, and is otherwise faulty. Request 2 failed to hypothesize an honest belief in the apparent dаnger and freedom from fault. Request 3 is faulty; the appellant• might have been in actual danger when he killed deceased, but it may not have been imminent; and, further, the “bona fide belief” in danger should have been predicated upon reasonableness of thаt belief. Request 12 was properly refused; it has been repeatedly condemned.— Comptons’ Case, 110 Ala. 24, 20 South. 119; Gibson’s Case, 91 Ala. 64, 9 South. 171; Toliver’s Case, 94 Ala. 111, 10 South. 428; Thomas’ Case, 106 Ala. 19, 17 South. 460; Simmons’ Case, 171 Ala. 16, 54 South. 612. Request 14 asserts a correct principle of law. See Fleming’s Case, 150 Ala. 19, 43 South. 219; Gainey’s Case, 141 Ala. 72, 37 South. 355; Harris’ Case, 8 Ala. App. 33, 62 South. 477; Davis’ Case, 7 Ala. App. 122, 61 South. 483; Adams’ Case, 175 Ala. 7, 58 South. 591. This charge, however, was substantially covered by given charges 9A, 10A, ‍‌​​​​​‌‌​​​​​​​‌​‌​​​​​‌​​​​​‌‌‌‌‌​​​​‌​‌​‌‌​​​​‍and 13. Request 14%, instructing tha,t the jury could not find the *251 defendant guilty of murder in the second degree, and request 15, instructing that the jury cоuld not find the defendant guilty of manslaughter in the first degree, were properly refused. The degree of the crime was for the jury, and thesе charges sought to withdraw this question from their consideration. — Seams’ Case, 84 Ala. 410, 4 South. 521. Request 16 was properly refused, being a request for the general affirmative charge. Request 20- — copied, doubtless, from Twitty’s Case, 168 Ala. 59, 53 South. 308, or Black’s Case, 5 Ala. App. 87, 59 South. 692, with the omission of the word “same,” preceding the word “right” — was held in those cases to be good. The omission of the word “same,” preceding and qualifying the word “right,” detracts from the clearness or perspicuity of the charge, having a tendency to mislead. Even if this were not so, we would be impelled to the conclusion that the refusal of this charge did not, under rule 45, “probably injuriously affect the substantial rights” of appellant, since given charges 2A, 5A, and 17 substantially instructed upon appellant’s rights in the premises. Request 21 has been, in substance, approved in Taylor’s Case, 149 Ala. 32, 42 South. 996, Watts’ Case, 117 Ala. 24, 59 South. 270, and Pate’s Case, 150 Ala. 10, 43 South. 343, but was substantially covered by given charge 11 A.

There being no prejudicial error in the record, the judgment below is accordingly affirmed.

Affirmed.