Roden v. State

Jun 3, 1915

Reporters:: , ,
Before:: Brown

BROWN, J.

(1) The indictment contains but a single count, charging the offense of murder in the second degree and embracing the charge of manslaughter in both degrees.—Stoball v. State, 116 Ala. 454, 23 South. 162.

*109(2) The form of the verdict returned by the jury was:

“We, the jury, find the defendant guilty of manslaughter in the first degree, and fix his punishment at seven years in the penitentiary.”

This verdict was sufficiently specific and in proper form, and the words interlined in the verdict by the trial judge by consent of the defendant may be treated as surplusage. The verdict must be referred to the indictment, and the words “as charged in the indictment” are nonessential.—McDonald v. State, 118 Ala. 672, 23 South. 637; Washington v. State, 117 Ala. 30, 23 South. 697; Watkins v. State, 133 Ala. 88, 32 South. 637; Durrett v. State, 133 Ala. 119, 32 South. 234.

(3, 4) The court, without violating any rule of evidence or practice, could have overruled the motion of the solicitor tO’ exclude the statement made by the witness F‘rank Martin on cross-examination in response to questions asked by the defendant’s counsel, to wit, “I might have shot him if I had got back down there,” for the reason that no objection was made to the question calling for the statement.—Dowling v. State, 151 Ala. 131, 44 South. 403. However, it was not error for the court to exclude the statement, which was nothing more than the speculation of the witness at the time he was testifying as to what he might have done if different conditions had existed at the time of the difficulty, and was wholly immatеrial. The witness admitted that his feelings toward the defendant were not good, and stated that he had a grievance that justified his ill will towards the defendant. The state of feelings of a witness for the prosecution towards the defendant is a legitimate subject of inquiry, and it is permissible, on cross-examination, to bring out the previous acts and declarations *110tending to show hostility.—McHugh v. State, 79 Ala. 43; Fincher v. State, 58 Ala. 215. But it is not permissible for the witness to state matters of speculation as to what might have occurred under different conditions, or if certain things ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍had transpired, for the purpose of showing bias. Mere speculation, like emotions and passions, is not a physical entity that is susceptible of proof as such.—Carney v. State, 79 Ala. 14; Thornton v. State, 113 Ala. 47, 21 South. 356, 59 Am. St. Rep. 97.

(5) While it is permissible to show ill will of a witness toward the accused, it is not permissible to go into the partiсulars of the transaction causing such hostile feeling. The only fact that is material in this respect is the state of feeling of the witnesses toward the accused, and whether or not his testimony is biased thereby, and the cause engendering the hostile feeling, or whether there is any basis for such hostility, is wholly immaterial.

(6) While a question eliciting testimony as to the state of feelings of the witness towards the accused is not objectionable because it refers to some particular transaction, such as the question held proper in Sanford v. State, 143 Ala. 83, 39 South. 370, “Is it not a fact that you and Sanfоrd are unfriendly on account of a whisky bill that you owe?” it is not permissible to inquire into- the, particulars of the transaction, and questions not embodying an inquiry as to the state of feelings of the witnеss are improper.—Moore v. State, 10 Ala. App. 179, 64 South. 520. Therefore the- court did not err in sustaining the objection of the solicitor to the question. “What about?” asked the witness Hattie Sims, after she had testified, “I don’t like the defendant and havе not for a good while. I feU out with him about four months ago.”

*111(7-9) As held in Rigell v. State, 8 Ala. App. 55, 62 South. 977, the opinions or conclusions of k medical expert are not permissible to show the position of the injured person at the time the wound was inflicted.—McKee v. State, 82 Ala. 37, 2 South. 451. Yet the position of the defendant’s arm at the time the wound was inflicted on him was a pertinent and material fact and the subject of proof by the positive testimony of an eyewitness, or by inference from physical facts, which it was the province of the jury to draw, and, if the objection that the question propounded to Dr. Thomason as to the position of the defendant’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍arm at the timе the wound was inflicted called for a conclusion or opinion of the witness had been urged, it would have been the defendant’s right to have it sustained; but the objection assigned that the question calls for illegal, inadmissible, and incompetent evidence is a general objection, and does not present the question, and the court did not err in overruling the objection.—Reid v. State, 168 Ala. 123, 53 South. 254; Johnston v. Johnston, 174 Ala. 225, 57 South. 450; Coghill v. Kennedy, 119 Ala. 641, 24 South. 459; Steiner v. Tranum, 98 Ala. 315, 13 South. 365.

(10, 11) The showing made for thе absent witness, when it was presented to the solicitor and admitted by him as a showing, became a court paper, and the solicitor had a right to use it in conducting the cross-examination оf the witness for whom the showing was. made. The showing itself, in the absence of evidence that the defendant had practiced a fraud upon the court in an attempt to further his defense by а .false statement of facts to be used as evidence in his behalf, was not admissible in evidence.—Brown v. State, 142 Ala. 293, 38 South. 268. The contents of the showing were not dis*112closed to the jury, and for all this record shows, what was set out in the showing was not in conflict with the testimony given by thе witness, and we discover nothing improper or prejudicial to the defendant’s rights in the ruling of the court on this matter.

(12) The deceased and his son attended church services at “Baker’s Chaрel,” and the difficulty between the deceased and his son and the defendant occurred just after they left the church, and the fact that the defendant went to the church armed with the pistol that he used in accomplishing the death of the deceased, in connection with the threat, “I am going to kill the last God damn Martin along the road,” Avas material on the question of his intent at the moment of using the Avea’pon.—Langham v. State, infra, 68 South. 504; Henson v. State, 114 Ala. 28, 22 South. 127.

(13) After a defendant has testified as a witness in his behalf, the state has a right to offer testimony showing his general bad character, for the purpose of impeaching his credibility.—McConnell v. State, infra, 69 South. 333; Byers v. State, 105 Ala. 31, 16 South. 716; Cox v. State, 162 Ala. 66, 50 South. 398; Sweatt v. State, 156 Ala. 85, 47 South. 194. The fact that the defendant, on cross-examination of these witnesses, elicited testimony, showing that the defendant’s character Avas bad for being “a rowdy,” “drinking,” “bootlegging,”’ “a rough boy,” “bеing drunk a good deal,” and “for fighting, shooting, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and raising fuss and always in trouble,” did not entitle the defendant to have the evidence of defendant’s “general bad character” excluded, or to hаve the evidence of the witnesses given in response to the defendant’s cross-examination excluded.

(14) The evidence on the part of the state tended to ■ shoAV that the defеndant provoked the difficulty by *113engaging in an angry scuffle with Frank Martin, and without justification shot the elder Martin just as he turned towards the defendant and Frank, while that offered by the defendant tended to show thаt he was attacked by the Martins, and after the deceased had knocked defendant down, and Lon Martin had shot the defendant, severely wounding him, the elder Martin approached the defendant in a threatening manner and while at close range defendant shot him, the’ ball entering deceased’s body 3 inches above, and 2y2 inches to the right of, the left nipple, passing through the body and making its exit on the right side at the inner border of the shoulder blade, ranging slightly downward, and causing his death instantly. Among other statements made by the prosecuting attorney in his argument to the jury werе: (1) “There never has been a pistol made, and never will be a pistol made, that would go through a human body, fired within so close a range of a human body, as the testimony of the defendant indicates that this pistol was fired into that man;” and (2) “because it is a physical fact that the bullet for a certain time wabbles;” and (3) “in the next place, his clothes would have been set on firе.”

The defendant objected to each of these statements separately, and asked the court to- exclude them and instruct the jury to disregard them. While it is possible to pronounce the first assertion as a mere conclusion of the solicitor which he had‘a right ü> draw from the evidence, yet the other statements marked (2) and (3) come clearly within the rule prohibiting the statement of facts not shown in evidence, and there was no evidence offered as to those facts so stated by the solicitor. The court should have arrested this argument and еxcluded these statements, *114and tlie refusal to do so constitutes reversible ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍error, as has been repeatedly held.—Dunmore v. State, 115 Ala. 69, 22 South. 541; Cross v. State, 68 Ala. 476; Langham v. State, 12 Ala. App. 46, 68 South. 594; Simon v. State, 181 Ala. 90, 61 South. 801. The other statements made in argument to which objections were made by defendant and overruled by the court were within the bounds of legitimate argument, and the rulings of the court in this respect were correct.

(15) Charge A is in the form of an argument, and was proрerly refused for that reason. Furthermore, this charge is fully covered by charge 17, given at defendant’s request.

(16) The court is not required to instruct the jury that there is or is not evidence of any cеrtain fact in the case, and may refuse charges embodying such instructions. Charges B and C are of this class, and were properly refused.—New Connellsville Co. v. Kilgore, 162 Ala. 644, 50 South. 205; Troup v. State, 160 Ala. 125, 49 South. 332.

(17) Charge D is incomplete, and does not assert a principle of law, and besides is in form an argument, and was well refused.—Turner v. State, 160 Ala. 40, 49 South. 828; Humphries v. State, 2 Ala. App. 12, 56 South. 72; Bone v. State, 8 Ala. App. 59, 62 South. 455.

(18) Charge E was well refused. Besides being involved the proposition stated is not sound. Before the defendant is entitled to an acquittal because of a reasonable doubt as to the elements of self-defense, the reasonable doubt must exist after the jury have considered all the evidence; and, while it may arisе out of a part of the evidence, it must exist in the face of all the evidence.

(19) Charge F has been condemned.—Ex parte Davis, 184 Ala. 33, 63 South. 1010.

*115(20) The proposition asserted by charge G, refused to defendant, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is covered by charge 17, given аt his instance.

(21) Charge H, refused to the defendant, asserts a correct proposition of law, and the error committed in its refusal was not cured by any other given charge; thereforе its refusal was reversible error.—Davidson v. State, 167 Ala. 68, 52 Sopth. 751, 110 Am. St. Rep. 17.

(22) Refused charge I is argumentative.

(23) Refused charge J pretermits a consideration of all the evidence, and was properly refused.

For the errors pointed out, the judgment is reversed, ánd the cause remanded.

Reversed and remanded.