71 So. 967 | Ala. Ct. App. | 1916
Appellant was indicted for murder in the first degree, was convicted of murder in the second degree and given a sentence of ten years. The evidence for the state tended to show that the deceased, having taken up and put in his lot some cattle belonging to the defendant that were trespassing upon the premises of deceased in a stock-law district and doing damage to his crops, notified defendant over the phone, who promised that he would that afternoon go over to deceased’s, pay the amount of damage that his (defendant’s) cattle had done, and take them home; that upon the arrival of defendant that afternoon at the house of deceased he, accompanied by deceased and deceased’s son, looked over the field where the cattle had trespassed for the purpose of estimating the damages, and then returned to 'the lot of deceased where the cattle were impounded, when it was discovered that a part of the cattle that had so trespassed did not belong to defendant; that thereupon a dispute or. altercation arose between defendant and deceased as to the amount of damage the former should pay the latter for the injury done by his cattle that, in common with the others, had done the trespassing; that, no adjustment having been reached, the defendant finally said in an angry tone that he would let the law settle that matter later, but would now take his cattle home, and was proceeding to drive the cattle toward the lot gate, -which he had ordered one of his servants to open, when the deceased and his son hurried to the gate, closed it, and stood with their backs against it, whereupon defendant immediately pulled his pistol and fired at deceased, the bullet striking deceased just below the knee, shattering the leg bone, from the effects of which the evidence tended to show the deceased died in 42 days thereafter.
The evidence for the defendant tended to make out a case of self-defense, and to show, among other things, that defendant did not shoot deceased until deceased was attempting to ' shoot defendant also with a pistol.
In the light of this oral charge, which states fully and correctly the law on the subject, we see no room for rational contention that when the court subsequently, in a written instruction given at the instance of the state, correctly stated a part of the law on the subject, the jury were mislead into believing that the part not stated was contrary to what the court had instructed them in the oral charge; hence we think baseless the complaint of the defendant here when he contends that the jury were misled to his prejudcie, by the written instruction mentioned, into believing that, if the evidence which showed the killing with a deadly weapon failed to show that it was done without malice, they had a right not only to infer malice, but to infer it conclusively, and to disregard all extraneous rebutting evidence, however trustworthy and cogent they might deem it. The charge merely stated the conditions under which malice may be inferred — not must be believed — and stated them correctly. Its failure to go further and explain that the inference as authorized is not a conclusive, but a rebuttable, one, and ceases when overcome by opposing evidence offered by defendant does not, we think, render the charge either faulty or misleading . We are unable to find that any of the authorities cited by defendant hold to the contrary.
Defendant’s witness T. Crow, who testified to defendant’s good character, but who did not, either on direct or cross examination, testify at all as to deceased’s character, was on redirect examination asked by defendant if he (witness) had ever heard of deceased being in quarrels or fusses. It has been heretofore pointed out that the law does not permit defendant to prove deceased’s bad character in this way; hence the court did not err in sustaining the state’s objection to defendant’s question. — Authorities, supra.
We have discussed all the errors insisted upon except the motion for a new trial. Under the act approved September 22, 1915 (General Acts 1915, p. 722), amending section 2846 of the Code of 1907, rulings of the lower court on motions for new trials in
We find no error in the record, and the judgment of conviction is affirmed.
Affirmed.
Note. — The foregoing opinion was prepared by Judge Thomas before his retirement, and has been adopted by the court.