46 So. 521 | Ala. | 1908
Indictment was found against defendant, for the murder of Wood Simmons, in the circuit court of Walker county, at its spring term, 1905; and at the request of defendant in open court, on the 15th of September, 1906, the case was transferred to the Walker county law and equity court, in accordance with the act of December 5,1900 (Acts 1900-01, p. 112).
The defendant moved to quash the venire, but the record is silent as to any action of the court on the motion. There is, therefore, no question as to a ruling on that motion for review.
The evidence for the state tended to show, that deceased and his young son were in a two-horse wagon, driving along a road from Corona, going home, and defendant and two companions came up, riding rapidly by, and caused deceased’s mules to become frightened, but deceased drove on behind them, and'when they had gone some distance beyond a bridge in the road, they got off their horses,deceased being 15 or 20 steps behind them; that defendant with an oath said to Simmons, “What are you trying to run over us for?” and he replied, that he was not trying to run over them, when defendant replied, he was a liar, and that he was trying to do so; that deceased then started on, and defendant began shooting at him, while he was seated in the wagon, and struck him three times, from the effect of which wounds he died in about five minutes.
■ The evidence for defendant tended to show, that defendant and his companions alighted from their horses, to adjust a stirrup strap of one of them that had been broken; that deceased got out from his wagon which had stopped, picked up a stick and commenced at once firing at defendant with a pistol he had taken from his inside breast pocket, and the shooting between him and defendant began after that; that after deceased was shot, he got in his wagon, and was not killed in it.
Ben Wilcntt, for the state, testifying to the shooting, stated that he heard the shots; that the first two or three Avere from large guns. He was asked by the solicitor if he could tell which way the shot that entered deceased breast ranged, and he answered that it went tolerably straight in, and then stated, that it went a very little quartering with the way the others went; that it went nearly straight, but not in the same direction. The defendant, on the cross, asked him, “What made you change awhile ago, and say it went quartering, after saying it Avent straight in?” An objection by the solicitor to the question was sustained. The purpose of the question does not appear, and as far as the record shows, the objection Avas not improperly sustained.
. The effort of the defendant to buy or borroAV Moore’s pistol, and what he said — “I am going to get me a man” —and the treats he made against deceased, were admissible. — Myers v. State, 62 Ala. 599.
The defendant asked the witness,. “If he did not state, about four years ago before the killing, that he heard Rad Poe (the defendant) say, that he Avould kill Simmons, if he ever ran on him again, and this was after, he had kicked Rad Poe around the church?” and he an-SAvered, “Yes, sir.” The state moved to exclude the part of the answer, as to kicking Rad Poe around the church, because it was going into a former difficulty, which objection was properly sustained. — Gordon v. State, 140 Ala. 30, 36 South. 1009. This applies as well to excep
Tbe witness was asked by the defendant, “If since this occurred, yon haye received a letter from Frank Pickett offering to hire yon to testify?” The question was indefinite; but, if it was to call out evidence about deceased’s kicking defendant around the church, four years before the killing, it was in reference to a collateral matter having no> connection with this case, the details of which could not, as we have said, be gone into. Pickett, it seems, was aiding the solicitor, but not as an attorney, in the trial of the case.
George Poe,.witness for defendant, stated that he had a conversation with deceased a short time before he was killed and was then asked “Tell the jury what it was, how he came to hear it, and all about it?” The state objected to the details, and the court sustained the objection. The record does not show what answer was expected, nor what conversation was referred to. — Rowland v. State, 140 Ala. 144, 87 South. 245.
The defendant’s counsel stated to the court, that he desired to ask the witness, if just before the killing, he did not go to deceased in Corona, and try to bring about a reconciliation between him and Poe, and if his answer was not a threat to kill Poe. He was allowed to answer, that about two weoeks before the killing, deceased, in the conversation referred to, said he would kill the damned rascal, and turned off, and he informed defendant of the treat. So, it appears the defendant got the benefit of the proof of the conversation first inquired about and disallowed, and if there was error in the first ruling, the admission of the evidence later, of this conversation, cured it, and the error, if any, was without injury.
Objections the basis of exceptions 25 and 26 were properly sustained. Whether the witness had heard of threats against the defendant at the time suggested, was
The defendant, being examined in his own behalf, was asked, “Why did you move to Wylam?” an objection to which question was properly sustained. Why he removed was immaterial, and besides, the question called for secret and uncommunicated motive.
The case is heavily, unnecessarily, and distressingly, burdened with charges — for what good purpose it is difficult to comprehend. There were 11 asked by the solicitor and given; 45 were given for defendant, and 40 asked by him were refused, making 96 in all.
Charge 1 should not have been given as it required of defendant too high a degree of proof.
Charge 8, as it appears in the record, is ,in substance that, in order to sustain a conviction, the jury is only required to believe beyond a reasonable doubt that the shooting occurred in Walker county before the finding of the indictment. This is patently a bad charge — -the giving of which constitutes reversible error.
Charge 11 is bad and should not have been given. The hypothesis of the charge is, that the defendant is guilty of murder if he shot and killed the deceased with a previously formed design to take life. This design he may have had, and yet, he may have killed the deceased in self-defense. — Domingus v. State, 94 Ala. 9, 11 South. 190; Karr v. State, 106 Ala. 1, 11, 17 South. 328; Harbour v. State, 140 Ala. 103, 37 South. 330.
We suggest that, in the trial of criminal causes, the better practice is, that solicitors refrain from asking written charges unless the exigencies of the case absolutely require it.
For the errors in giving the first, eighth and eleventh charges requested by the .state, the judgment is reversed and the cause remanded.
Reversed and remanded.