108 Ala. 10 | Ala. | 1895
The defendant in the court below was convicted of murder and sentenced to the penitentiary. On the trial the defendant offered evidence of good character. In rebuttal, we presume, of the evidence of good character, the State was allowed to prove, against the objection of the defendant, by a deputy sheriff, “that he nearly always had a warrant for the defendant’s arrest.” This evidence was clearly illegal, and should have been excluded. A warrant in the hands of an officer for the arrest of another establishes no fact affecting the general reputation of the party to be arrested, and good character can not be impeached by such evidence.
A defendant who avails himself of the right to testify in his own behalf, may be cross-examined generally, and be compelled to disclose all facts within his knowledge' which could be elicited if he was merely a witness, and not a defendant, material to the issue, and is subject to all legal questions which may affect his credibility. It is competent to show, for the purpose of affecting his credibility, that a witness has been convicted of a felony, (and a defendant who has been examined is subject to this rule), but the court record of his conviction or a properly certified copy thereof, is the primary evidence to establish the fact. It can not be proven by parol evidence in the first instance. — Thompson v. The State, 100 Ala. 70; Thomas v. The State, Ib. 53.
When a party states to the court certain facts which he proposes to prove by a witness, some of which are legal and others are inadmissible, the court does not commit a reversible error by sustaining an objection to the introduction of the facts as an entire statement. Counsel offering the evidence should separate the legal from the illegal, and have the court rule separately as to each fact, and reserve his exception.
The proper rule for framing charges relative to good character, is stated in Goldsmith v. The State, 105 Ala. 8; Johnson v. The State, Ib. 113 ; Scott v. The State, Ib. 57 ; Newsom v. The State, 18 So. Rep. 206. Good character can not be disasociated from the other facts in the case, by referring to it alone as being sufficient to generate a doubt, any more than a similar reference could be made to any other fact in evidence.
It is well to keep in mind the rule declared in the case of L. & N. R. R. v. Hurt, 101 Ala. 34, where it is held that the court commits no error in refusing charges requested by a party which are mere repetitions of charges already given-at his request; a mere variation in the use of words, which do not change the meaning in any respect or application of the principles asserted, do not affect the rule. — Smith v. The State, 92 Ala. 30.
We would also direct attention to the rule declared in the case of Arp v. The State, 97 Ala. 5, where a defendant, being tried for murder, attempts to justify the taking of the life of an innocent person, under the plea of duress. If the defendant fired the shot which resulted in the death of the deceased, or was an accomplice of the party who committed the deed, although the shot may have been intended for a different person, the offense, in the eyes of the law, is the same that it would have been, if the shot had killed the person for whom it was intended. Clark v. The State, 78 Ala. 474. It seems from the evidence, that the deceased was the person at whom the fatal shot was fired. — Jackson v. The State, 17 So. Rep. 333.
Although a party is entitled to an acquittal if the jury have a reasonable doubt of his guilt, arising out of any part of the evidence, upon consideration of the whole evidence, a charge is misleading which instructs the jury that the defendant is entitled to the benefit of any-reasonable doubt, they may have, as to the existence of any material fact in evidence. . '
We are of opinión that the principles declared, and authorities cited," will furnish sufficient. guide' to the'court and counsel for the defendant, on another, trial.'/
Reve-rsed and remanded.
