Pate v. State

43 So. 343 | Ala. | 1907

Lead Opinion

ANDERSON, J.

The motion to quash the indictment did not disclose a good ground for quashing, and the- demurrers thereto were properly sustained. — Section 5269, Code 1896; Thompson v. State, 122 Ala. 12, 26 South. 141.

The demurrer to the motion to quash the venire was properly sustained.- — -Section 4997 of the Code of 1896, among other things, provides: “And no objection'can be taken to any venire facias for a petit jury, except for fraud in drawing or summoning the jurors.” The cases cited by counsel for appellant were decided before the adoption of the Code of 1896.—Wells v. State, 94 Ala. 1, 10 South. 656; Johnson v. State, 102 Ala. 21, 16 South. 99. The words above quoted from section 4997 of the Code of 1896 were evidently adopted by our lawmakers to cover a case like this and to' cure the defect in the law as construed in the Wells'and Johnson Cases, supra.

The trial court did not err in .overruling defendant’s motion to exclude the evidence of witness Shirley as to what defendant said as to his condition and that he would die. It Avas a predicate for dying declarations. AAdiicli Avere subsequently introduced in evidence. There, was no merit in the objection by the defendant to- the proof of the declaration made by deceased, as a sufficient predicate had been established.

The clothes of the.deceased were properly admitted in eAddence. The witness testified that the clothes were in the same condition as when taken off the deceasd, except that they had been washed. Granting that the-blood had been Avashed out, they were relevant to show,, from the holes therein, where the bullets pierced the deceased.

The trial court properly overruled the objection to the-dying declarations as disclosed by the testimony of Mrs. Emma F. Pate. It Avas not the same statement that was Avritten doAvn by Mr. Morgan.

There Avas no error in excluding, upon motion of the state, Avhat the Avitness said about seeing the deceased at one time with a pistol which was not concealed.

There was no error in permitting the state to show Avhat the defendant did immediately after he shot deceased, as the evidence sIioavs that the act disclosed by the evidence was clearly a part of the res gestae.

The trial court properly refused to let defendant prove that he voluntarily surrendered himself to thé sheriff the day after the killing. A defendant cannot, by his OAvn acts and declarations, make testimony for himself. Nor was it relevant as to when and where the sheriff arrested the defendant. The state had mad,e no effort to show flight, and such evidence could not be competent to refute any evidence or infeience of flight.

Charge 1, refused the defendant, was approved by this court in the cases of Kennedy v. State, 140 Ala. 1, 37 South. 90, and Snyder v. State, 145 Ala. 33, 40 South. 978, as it applied to the facts in those cases. Whether the facts in this case would support the charge, or not, we need not decide; for, if the court committed error in refusing same, it Avas error Avithout injury and would not reverse the case. — Code 1896, § 4333. This charge AA’as more- than covered by Avritten charge 35, given at the reque-fl of the defendant.

Charge A, requested by the defendant, was properly refused. Good character may be sufficient to generate a reasonable doubt of guilt, although no such doubt would exist without good character; but a charge asserting this proposition gives too much prominence to good character, and should be refused when it pretermits a consideration of the proof of good character in connection with all the evidence in the case.—Crawford v. State, 112 Ala. 1, 21 South. 214; Paul v. State, 100 Ala. 136, 14 South. 634; Goldsmith v. State, 105 Ala. 8, 16 South. 933; Scott v. State, 105 Ala. 57, 16 South 925, 53 AM. St. Rep. 100. The case of Fields v. State, 47 Ala. 603, 11 Am. Rep. 771, has been in effect overruled.

Charge 18, refused to the defendant, is the same as given charge 35. The trial court could have safely refused both of them. They each justify the act upon appearances, regardless of who provoked the difficulty, and are much broader and more favorable to the defendant than refused charge No. 1, in the case at-bar, and the charge held good in the cases of Kennedy and Snyder, supra.

All of the other written charges requested by defendant were properly refused. If not otherwise faulty, they were abstract. The undisputed evidence shows that the deceased was shot in the back while in or very near the road, and that he was not invading the defendant’s castle or curtilage.

The two charges given at the request of the state assert the law.—Jimmerson v. State, 133 Ala. 18, 32 South. 141.

Affirmed.

Dowdell, Denson, and McClellan, JJ., concur.

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Rehearing

ON REHEARING.

ANDERSON, J.

It is insisted by counsel for defendant, that this case should have been reversed because the. trial couit erred in permitting the state to interrogate the defendant, -while upon, the .stand as a witness in his own behalf, in reference to shooting the father of tlie man whom he was being tried for killing, upon the idea that it was violative of his constitutional right to require him to give evidence as to another offense, arid, tints give evidence which would incriminate him upon a trial for said other offense. It is true that a defendant cannot be compelled to give evidence against himself; but, when he avails himself of the right to testify as a witness in his own behalf, he waives the constitutional protection as to all facts relevant to the issues involved and may be fully cross-examined.—Clark v. State 87 Ala. 71, 6 South. 368; Cotton v. State, 87 Ala. 103, 6 South. 372. It is true he could not be questioned concerning an offense so disassociated with tin one involved as not to form a part of the res gestae; but he can be examined as to all matters relevant to the one at bar, although his answer might incriminate him in an oilier prosecution. The questions complained of in the case at bar elicited evidence that was competent. It was a part of the res gestae, and the state had the right to ask about the killing of the father, although he could be separately prosecuted for killing him.

The Alabama cases cited by counsel (Davis' Case, 131 Ala. 16, 31 South. 569; Cooper v. State, 86 Ala. 610, 6 South. 110, 4 L. R. A. 766, 11 Am. St. Rep. 84; Potter v. State, 92 Ala. 37, 9 South. 402;. Chastang v. State, 83 Ala. 29, 3 South. 304) have no application to this question, as they relate to the acts of the accused not on his cross-examination as a witness. Most of them hold that the state cannot prove that the defendant declined to make tracks for comparison. Nor is the case of Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746, an authority in favor of defendant’s contention. There i-lie court held that a defendant could not be forced to produce documents that would incriminate him. The right to cross-examine was not involved. In the case at bar the killing of the father was almost contemporaneous with the killing of the son, and was so closely associated with it as to render it a part of the res gestae, and when the defendant took the stand as a witness the state had the right to question him as to any fact that was relevant, regardless of the consequences to him.—Seams v. State, 84 Ala. 410, 4 South. 521.

The application for rehearing is overruled.