49 So. 329 | Ala. | 1909
Accused was indicted for murder, and was convicted of manslaughter in the' first degree, -from which judgmefit of conviction he appeals.' There ■ivas ño questibii 'or dispute that defendant killed 'the deceased, intentionally, byshooting him-with a: gun'and a
■ The jurors challenged by the state Were subject to the challenge-for cause — made-so by the statute — and there can be no error in allowing the challenge by the state or by the accused. It was made to clearly appeal’ that the jurors challenged had a fixed opinion as to- the guilt or innocence of the accused, which would bias their verdict. They should have been challenged by one or the other of the parties. ’
It was clearly competent to show that defendant had a pistol prior to the killing. It might tend to show preparation for the crime, and was admissible for this purpose, if for no other. It was also proper- to allow thé state to prove that, several hours prior to the killing, deceased had no pistol. The accused relied upon self-defense, and his evidence was to the effect that deceased was attempting to draw a pistol, with which to shoot accused, at the time the fatal shots were fired. Therefore that deceased,' several hours before the encounter, had no pistol, was a circumstance legitimate to disprove the only defense attempted. Its tendency may have been very slight, but, ho matter how slight, it was competent for this purpose. The' state had a right to show that deceased was unarmed at the' time of the killing, and to show that he did not have the saddlebags with him at- the time he was killed, as claimed by the accused, and also- that the was not in the habit' of carrying them, as was-claimed ánd-att'emptéd:-tó be proven by the accused. •' All this" evidence had" á ■ tendenC-y^ to' dis* prove'the only defense attempted To-be set irg.-Wiley’s Case, 99 Ala. 13 South 424; Naugher v. State, 116 Ala. 466, 23 South. 26.
The clothing of deceased, as well as that of the ac-•caused, letters found on the body of deceased, the instruments causing the death, photographs of the deceased and accused, maps and plats of the scene of the crime, pieces of cloth, buttons, gun wadding found néar the scene of the crime, bullets cut from house and trées near
The wearing apparel of deceased, showing the location of the bullets, the character and nature of the
The court very properly declined to allow counsel for defendant to ask the witness Stephens if his memory then, as to the facts to which he was testifying, was any better than it was, as to matters on the preliminary trial. This was calculated and intended as a mere argument with the witness. It was likewise wholly irrelevant whether Pick Roden was at the funeral. The court very properly declined to allow proof as to this.
It was proper to allow proof of flight by defendant, soon after the killing, and to do this it was proper to prove the direction of his flight, the mode of his travel,' the places to which he went and those he avoided, in fact, to prove his conduct and demeanor soon after the killing and while fleeing; but we are unable to see what relevancy the fact that the captain of the steamboat was related to defendant could have on any issue. It was clearly inadmissible, but we cannot discern any possible injury or good to come of it.
It might be very important to know how and when the defendant obtained the pistol with which he shot deceased ; and the court properly allowed proof of that fact. .......
It was wholly irrelavant and inadmissible to allow the! state to prove the genealogy of the wife of the defendant, the pecuniary, condition of her family, that her brother had no home, that her father was dead, etc. This was
The character and the pecuniary condition of the wife, and the merits of the divorce proceedings between her and her husband, should not have been gone into. This trial was not the proper time or place to inquire into these matters, which were wholly “res inter alios acta.” The facts of the separation of the husband and wife, the pendency of divorce proceedings, the relation of the deceased to these matters, might be proper; but it was not proper to go into the details and the merits of these controversies.
It was competent for the state to prove that the defendant had been convicted of manslaughter. He made himself a witness, and this evidence was therefore admissible, to go to his credibility, and the fact that he, as a witness, admitted the conviction and sentence, did not prevent or preclude the state from proving it by record evidence; but this evidence went to his credibility only as a witness, and should have been so limited by the court, on request of the defendant. It was not admissible for the purpose of showing that, because he was guilty of manslaughter for killing Manning, he was also guilty of manslaughter in killing Roden, the deceased, for which he was then on trial.
The judgment is reversed, and the cause remanded.
Reversed and remanded.