Pearson v. State

59 So. 526 | Ala. Ct. App. | 1912

PELHAM, J. —

The defendant was indicted for murder in the second degree, was convicted of manslaughter, and appeals.

It is conceded that it is not shown that the venue-was proven. The jurisdiction conferred on the circuit court, when sitting at Good water, in Coosa county, trying criminal cases, is territorially limited to certain heats of the county (Local Acts 1907, pp. 216, 735) ;: and, while it is conceded that the evidence showed that the offense was committed in Coosa county, at the home of one Chapman, about two miles from Goodwater, it. is insisted that the general charge requested by defendant should have been given, because there was not sufficient proof of venue.

It is not an essential to prove venue that direct proof be made; it may be shown by circumstantial evidence.. — Harrison v. City of Anniston, 156 Ala. 620, 46 South. 980; Tinney v. State, 111 Ala. 74, 20 South. 597. There may be sufficient evidence to prove venue, though there be no direct proof that the crime occurred in the county of the trial. — 6 Mayfield’s Dig. p. 910, § 21; Glenn v. State, 157 Ala. 12, 47 South. 1034. If there is evidence from which the jury could infer that the crime was committed in the jurisdiction of the court where the indictment was found, this is sufficient. — Dupree v. State, 148 Ala. 620, 42 South. 1004; Tinney v. State, supra.

There was sufficient evidence in this case, as shown by the testimony set out in the bill of exceptions, from which the jury could have fairly reached the conclusion that the crime was committed in the jurisdiction of the court. The question presented in this case is not one of total absence of all evidence going to prove the venue, as presented by the case of Tompkins v. State, 1 Ala. App. 258, 55 South. 267, cited and relied upon by counsel for appellant. In that case we held that, where the record purporting to set out all of the evidence affirmatively showed that there had been an entire want of evidence going to prove the venue, and no testimony from which an inference could be drawn that the crime had been committed in the jurisdiction of the court, an exception to the finding and judgment of the court on the facts would present the question for determination of this court, just as a request for the general charge in a jury trial; and that “a total absence of proof of venue” must, when raised in that way, work a reversal of the case.

Where there is no proof of venue, it becomes, when properly presented, a question for the court to pass upon; but when it is a question of the sufficiency of the evidence tending to prove the venue it becomes a question for the jury, and this court will not interfere, unless the ruling of the trial court was invoked on the sufficiency of the evidence, and this ruling made the ground of attack. — Hubbard v. State, 72 Ala. 164; Clarke v. State, 78 Ala. 477, 56 Am. Rep. 45; Ragsdale v. State, 134 Ala. 24, 32 South. 674.

In this case no instruction was given, refused, or requested involving an inquiry into the sufficiency of the evidence going to prove the venue; and the bill of exceptions shows that there was evidence that the crime was committed in Coosa county, at the residence of a certain named and designated person, about two miles from Goodwater, the place where the courthouse is situated in which the trial was being conducted — sufficient facts, we think, to afford an inference, and to authorize a conclusion by the jury, that the crime Avas committed Avithin the jurisdiction of the court.

Counsel for the defendant, in their brief filed in this case, discuss no other question than that of venue; but Ave have examined and considered all of the other questions presented by the record and find no reversible error.

The defendant Avas not entitled to his discharge because of the jury having been permitted to separate after the trial had commenced and before verdict. — Williams v. State, 45 Ala. 57; Robbins v. State, 49 Ala. 394.

Refused charges Nos. 2, 3, 6, and 8 ignore the defendant’s duty to retreat. Charge No. 5 does not correctly state the laAV of retreat. It is the duty of one attacked to retreat before taking human life, unless thereby he increases his danger.

Charge No. 9 fails to explain or limit Iioav far one may go in striking in self-defense, and might authorize the jury to believe that one may strike, even unto taking the life of another, Avhen he Avas not in imminent peril of life or great bodily harm.

Charge A does not predicate the essentials of justification in striking the first lick, and is otherwise faulty. To be complete and put the court in error for its refusal, it would be necessary to predicate freedom from fault, and the defendant being under no duty to retreat.

The rulings on the evidence show no reversible error, and the cause will be affirmed.

Affirmed.