Olden v. State

58 So. 307 | Ala. | 1912

SIMPSON, J.

The appellant was convicted of the crime of murder in the first degree, and sentenced to imprisonment in the penitentiary for life.

The Avitness George Jordan, having testified, among other things, to the fact that he was the person nearest to defendant and deceased at the time the latter Avas shot, and the first to get to them afterwards, also that the defendant had no pistol at'that time, and that he had never seen him Avith a pistol during the month that he lived Avith him, also that he never saw him with a pistol at any time, Avas asked: “Did you ever see the defendant with a pistol?” To this question the solicitor objected, and the court sustained the objection, and defendant excepted. In this ruling there Avas no error. In addition to the fact that the witness had just testified as above, it AAras immaterial as to whether the Avitness had ever seen defendant Avith a pistol.

There Avas no reversible error in permitting-Dr. Mc-Collum to testify that the two holes in the defendant’s shirt Avere not made by the same instrument, as no injury resulted to the defendant by alloAving the Avitness to testify to Avhat the jury could see for themselves.— Miller v. State, 107 Ala. 40, 56, 19 South. 37; Stevens v. State, 138 Ala. 72, 81, 35 South. 122.

There Avas no error in sustaining the objection to the question to the Avitness, Judge Coleman, as to Avhether, “about a Aveek prior to the death of Mamie Shorter, the defendant came to see him Avith reference to getting a divorce from his Avife for the purpose of marrying the deceased.” Besides beiflg self-serving testimony, it Avas entirely irrelevant. It is not probable that the fact that he Avished to marry the Avoman with whom he was living Avould have made him any the less jealous of the attentions of another to her, Avhich seems to have been the cause of the difficulty between them, if there was a difficulty.

After the woman (deceased) was shot, the defendant went after Dr. Gewin, and Dr. Gewin testified to contradictory statements made by the defendant as they rode in the bnggy in regard to the manner in which the shooting occurred. Subsequently the defendant sought to prove by several witnesses, that the defendant ivas subject to epileptic fits, that he had one that night after the doctor got there, and by two physicians that if the defendant, under the circfimtsanc.es, did have an epileptic fit, then “in the time elapsing between the shooting and the fit, which occurred two or three hours later, he would be mentally irresponsible, and any statements made by him during that time would be the statements of a mentally irresponsible person.” The court, after taking the statements of the witnesses to this effect (the jury being-excluded), refused to allow the testimony to go before the jury. In this there ivas error. Even though the facts testified to were not sufficient to exclude the testimony of the contradictory statements, yet it was for the jury to determine whether the statements bore evidence of guilt, or were made as the result -of mental disturbance, or under the influence of anything that unbalanced the mind of the witness, so as to make them the mere incoherent expressions of one who was mentally irresponsible. — 2 Wigmore on Ev. p. 1213, § 1044; 1 Wigmore on Ev.'p. 354, § 276 (e).

There was no error in sustaining the objection to the question as to whether the Jones Avitnesses were playing “craps” at the time they professed to have had a conversation with the defendant, as it was immaterial what they were doing.

In the course of his argument the solicitor said: “It is said and it is sung, and it is on the lips of everybody, that human life is the cheapest commodity in the community.” The court overruled a motion to exclude this statement. It is sometimes difficult to draw the line between allowable argument and improper statements in argument. A general proposition is that an attorney cannot be allowed to state anything as a fact as to which there is no evidence, as where, in a prosecution for selling whisky, the solicitor stated that the town in question was “worse cursed with the illegal sale of whisky (than) any place I know of,” and spoke of it as a town “trying to build up a school,” but a place “where there is a grog-shop on every corner.” This court held that to be reversible- error, but remarked: “We do not mean to say that the solicitor may not comment upon the evils generally of the crime which the law he is seeking to enforce intends to prevent.” — Dollar v. State, 99 Ala. 236-238, 13 South. 575, 576. On the other hand, it is said: “We would not embarrass free discussion or regard the many hasty or exaggerated statements counsel often make in the heat of debate. * * * Such statements are usually valued at their true worth. * * ® It is only when the statement is of a substantive, outside fact —stated as a fact — and which manifestly bears on a material inquiry before the jury, that the court can interfere, and arrest discussion.” — Cross v. State, 68 Ala. 484. In that case this court held it not reversible error to say that “juries are frequently more inclined to mercy than to judgment,” but that it was error to allow counsel to state facts which had occurred in another case. — 68 Ala., page 483.

It was also improper to refer to the character of a party’s ancestors, or to speak of a defendant as a “soulless corporation.” — Com'l Fire Ins. Co. v. Allen, et al., 80 Ala. 572, 1 South. 203. Without multiplying authorities, we hold that the remarks of the solicitor were not such an abuse of the privilege of debate as to demand their exclusion.

Charge 1, requested by the defendant, was involved and confusing, and therefore properly refused.

There was no error in refusing to give charge 2, requested by the defendant. It was not covered by the case of Bailey v. State, 168 Ala. 4, 53 South. 298, 300, 390, nor Bell v. State, 115 Ala. 34, 39, 22 South. 526, nor Carroll v. State, 130 Ala. 99, 30 South. 394, in that it predicates the acquittal on a reasonable doubt growing out of any part of the evidence, and not out of the whole evidence. — Welch v. State, 156 Ala. 112, 118, 46 South. 856; Bardin v. State, 143 Ala. 74, 77, 38 South. 833; Nicholson v. State, 117 Ala. 32, 35, 23 South. 792.

Charge 3 asserts correct principles of law, and, as the case is to be reversed, it is unnecessary to decide whether it was covered by charges “a” and “b,” given at the request of defendant.

Charge 4, being the general charge, was properly refused.

The judgment of the court is reversed and the cause remanded.

Reversed and remanded.

Dowdell, C. J., and Anderson, Sayre, and Somerville, JJ., concur. McClellan and Mayfield, JJ., not sitting.