Pressley v. State
52 So. 337
Ala.
1910
Check Treatment
EVANS, J.

The defendant was indicted on the 8th day of September, 1909, in the city court of Talladega, by the grand jury thereof. On the 13th day of September, 1909, he was duly arraigned according to law, ana pleaded “not guilty.” All the .orders of the court appear regular, and according to law, upon the record. On the 4th day of October 1909, the day regularly set for his trial, he was tried and convicted of murder in the second degree. On the trial, the defendant reserved exceptions to the ruling of the trial court on the admissibility of certain evidence, and to a certain part of the oral charge, and to the refusal of the court to give written charges Nos. 1 and 2, asked by defendant. We will consider the exceptions in the order in which they arose on the trial of the case. . -

On examination of defendant’s witness P. C. McKinney, alias Lewis Brown, by the defendant, said witness *20testified “that he saw a fuss or difficulty between defendant and deceased; that this fuss occurred about three hours before the shooting; and that in said difficulty he saw deceased hit defendant with a stick.” The solicitor objected to going into the details of this difficulty which took place about three hours before the shooting by which deceased was killed. The court sustained the objection, and the defendant excepted. It is a well settled rule of law in this state that, while the fact that there was a former difficulty may be proved to show motive or malice, yet the details of such difficulty cannot be proved.—Jones v. State, 116 Ala. 468, 23 So. 135; Martin v. State, 77 Ala. 2. The defendant then offered to exhibit a stick, and to prove by the same witness that about three hours before the shooting deceased struck defendant twice with said stick, and ran defendant under the house, and ran after him. The court sustained the objection of the state to the introduction of said evidence. This was, of course, an effort to prove the details of a former difficulty, and was inadmissible upon the authorities above cited.

The defendant, offered to prove what deceased said after the difficulty in which he received the wound from which he afterwards died, and after the defendant had left the place where it occurred. No predicate was laid to prove dying declarations, and to prove what was then said was inadmissible hearsay; as there was neither the sanction of an oath, nor its legal equivalent — the consciousness of impending death.

After the defendant rested his case, the court, against the objection of defendant, allowed the state to recall and examine a witness on matters not inquired into on his first examination. To do so was within the discretion of the trial court.—Braham v. State, 143 Ala. 28, 38 South. 919.

*21The defendant excepted to the following part of the oral charge delivered by the court: “Yet, the mere fact, gentlemen, that a man makes threats against another, that don’t put him out of the pale of society, and authorize the man that he is threatening to hunt him up and kill him,” upon the ground “that the same was abstract; there being no evidence to support it, or to show that defendant hunted up deceased.” Upon a careful consideration of the evidence we are of opinion that the charge is not, in all the phases of the evidence, abstract. There was evidence tending to show that deceased lived at the place where he was killed; that about three hours before the shooting defendant and deceased had a difficulty; and that at the time deceased was killed, or received the fatal wound, he was unarmed and was not attacking defendant. At least, there was evidence from which the jury might have inferred such to be the facts. In view of such evidence, we cannot say that the charge was subject to the objection interposed.

Written charge No. 1, asked by the defendant, was the general affirmative charge, and was properly refused. There was evidence upon which the jury could properly predicate the verdict rendered.

Charge 2 was argumentative, and therefore properly refused. It also pretermits the duty of retreat, and is otherwise had.

In criminal cases, allowing or refusing a new trial is within the discretion of the trial court.

Affirmed.

Dowdell, C. J. and Anderson and Sayre, JJ., concur.