Pippin v. State

Nov 30, 1916
Reporters:
, ,
Before:
Anderson
ANDERSON, C. J.

(1) Selling cocaine is a misdemeanor under our statute, and a conviction for same is not crimen falsi, and does not affect the credibility of one convicted therefor under the terms of section 4008 of the Code of 1907. — Gordon v. State, 140 Ala. 29, 36 South. 1009; Smith v. State, 129 Ala. 89, 29 South. 699, 87 Am. St. Rep. 47; Fuller ‍​‌‌​​​​​‌​‌‌​​‌​​​‌‌​​‌‌‌‌​‌‌‌‌‌‌‌​‌​​‌‌‌​‌​‌​‌​​‌‌​‌‌​​​​‌​‌​​​​​‌‌​​​​​‌‌‌​​‌‌‌​‌‌​‌​‌‌​‌​‌‌‌​‍v. State, 147 Ala. 35, 41 South. 774; Williams v. State, 144 Ala. 14, 40 South. 405. The trial court did not err in sustaining the state’s objection to the defendant’s question to the witness as to whether or not he was serving a sentence on the county road for selling cocaine. It is true that the statute has undergone a slight change as it appears in section 4008 in the Code of 1907, by the substitution of crimes involving moral turpitude for infamous crimes, yet we do not think that the offense of selling cocaine involves moral turpitude. This is a stautory crime, not punishable at common laAV. It is of the ‍​‌‌​​​​​‌​‌‌​​‌​​​‌‌​​‌‌‌‌​‌‌‌‌‌‌‌​‌​​‌‌‌​‌​‌​‌​​‌‌​‌‌​​​​‌​‌​​​​​‌‌​​​​​‌‌‌​​‌‌‌​‌‌​‌​‌‌​‌​‌‌‌​‍description malta prohibita, as there is no inherent immorality in such acts, and its illegality lies only in the fact of being prohibited. — Black on Intoxicating Liquors, par. 383.

(2) As said in the case of Fort v. Brinkley, 87 Ark. 400, 112 S. W. 1084: “Moral turpitude implies something immoral in itself, regardless of the fact whether it is punishable by law. The doing of the act itself, and not its prohibition by statute, fixes the moral turpitude.” — Gillman v. State, 165 Ala. 135, 51 South. 722; Swope v. State, 4 Ala. App. 83, 58 South. 809; Smith v. State, 159 Ala. 68, 48 South. 668.

(3) The trial court did not err in sustaining objections to questions to Jim Peterson as to ‍​‌‌​​​​​‌​‌‌​​‌​​​‌‌​​‌‌‌‌​‌‌‌‌‌‌‌​‌​​‌‌‌​‌​‌​‌​​‌‌​‌‌​​​​‌​‌​​​​​‌‌​​​​​‌‌‌​​‌‌‌​‌‌​‌​‌‌​‌​‌‌‌​‍threats of a general nature made by the deceased, as there was no evidence up to this stage of the trial as to any overt act of the deceased, even if the form of the question was proper, which we do not decide.

The other exceptions to the ruling upon the evidence are so patently without merit that a discussion of same can serve no good purpose.

(4) The defendant’s requested charge 1 was properly refused. — Walker v. State, 134 Ala. 86, 32 South. 703.

(5) There was no error in refusing defendant’s requested charge 19. — Ex parte Davis, 184 Ala. 26, 63 South. 1010.

(6) Defendant’s refused charge 21 pretermits the duty to retreat. — Stewart v. State, 137 Ala. 33, 34 South. 818; Andrews v. State, 159 ‍​‌‌​​​​​‌​‌‌​​‌​​​‌‌​​‌‌‌‌​‌‌‌‌‌‌‌​‌​​‌‌‌​‌​‌​‌​​‌‌​‌‌​​​​‌​‌​​​​​‌‌​​​​​‌‌‌​​‌‌‌​‌‌​‌​‌‌​‌​‌‌‌​‍Ala. 14, 48 South. 858.

*617(7) There was no error in refusing defendant’s requested charge 23. If not otherwise bad, it assumes that defendant was in imminent peril at the time. — Johnson v. State, 8 Ala. App. 14, 62 South. 450; Roden v. State, 97 Ala. 54, 12 South. 419.

(8) There was no error in refusing defendant’s requested charges 30 and 31. They single out and give undue prominence to proof of good character and pretermit a consideration of same in connection with the other evidence. The defendant got the benefit of a correct charge as to good character under his given charge 22.

(9, 10) There was no error in refusing the defendant’s requested charges 33 and 34. If not ‍​‌‌​​​​​‌​‌‌​​‌​​​‌‌​​‌‌‌‌​‌‌‌‌‌‌‌​‌​​‌‌‌​‌​‌​‌​​‌‌​‌‌​​​​‌​‌​​​​​‌‌​​​​​‌‌‌​​‌‌‌​‌‌​‌​‌‌​‌​‌‌‌​‍otherwise bad, they assume that the defendant had the right to apprehend an attack if he knew the deceased was a man of violent character, regardless of whether or not the deceased was committing any overt act or making any hostile demonstration.

The judgment of the city court is affirmed.

Affirmed.

Mayfield, Somerville, and Thomas, JJ., concur.