48 So. 606 | Ala. | 1909
The appellant was indicted for the crime of murder in the first degree, and was convicted of murder in the second degree. The demurrer to the indictment, based on the ground that it charges the killing to have been done with a “gum,” is without merit. Any person of “common understanding” knows that it was intended to be with a “gun,” Code 1907, § 7134. The expression is, “shooting him with a gum.” The word “gum,” in this connection, cannot mean anything else than “gun,” as there is no such thing as a “gum” with which a man could be shot.
The plea in abatement, that the defendant’s name is “Simmons” and not “Summons,” is'without-merit, as an inspection of the original indictment, which is certi
The other ground of abatement is likewise without; merit, to wit, that the key to the jury box was not deposited with the county treasurer. — McLeroy v. State, 120 Ala. 274, 25 South. 247; Linnchan v. State, 116 Ala. 471, 478, 22 South. 662; Code 1907, § 7256. There was nothing in,the form of the demurrer to the pleas in abatement which made it necessary to overrule it.
There was no reversible error in allowing the solicitor for the state to examine the witness Lee Smith, on his voir dire, as to his having sufficient knowledge to understand the obligation of am oath. This is a matter which rests in the sound discretion of the court, to examine the proposed witness itself or permit counsel to examine him.-Carber v. State, 63 Ala. 52, 35 Am. Rep. 4; Henderson v. State, 135 Ala. 43, 44, 33 South. 433.
The witness was competent to testify. — McGuff v. State, 88 Ala. 147, 150, 7 South. 35, 16 Am. St. Rep. 25; Wade v. State, 50 Ala. 164, 166; Castleberry v. State, 135 Ala. 24, 27, 33 South. 431; 5 Mayfield's Dig. p. 972„ 973.
There was no error in striking from the showing as to the witness Bud Reeves, the statement in regard to the “wife and various members of the Smith family” doing all in their power to prevent him from telling what he saw and heard. This was the mere conclusion of the witness. He should have stated what was said to him, and who said it.
The question to the witness Gilley as to why he advised his nephew (defendant) to go to Utah, and the answer thereto, were properly excluded.
Testimony had been given on the part of the defense tending to show that the deceased had a pistol and was attempting to use it. It.was, therefore, proper to allow his wife to. testify that.-his pistol; was in his trunk.
Charge A, requested by the defendant, is substantially the same as charge 4 given at his request.
Charge B, requested by the defendant, should have been given. — Walker v. State, 153 Ala. 31, 45 South. 640.
There was no error in the refusal to give charge C, requested by the defendant. — Goldsmith v. State, 105 Ala. 9, 12, 16 South. 933; Crawford v. State, 112 Ala. 3, 13, 24, 21 South. 214; Eggleston v. State, 129 Ala. 81, 84, 30 South. 582, 87 Am. St. Rep. 17; McClellan v. State, 140 Ala. 100, 101, 103, 37 South. 230.
There ivas no error in refusing to give charge D, requested by the defendant. It omits any mention of freedom from fault by the defendant in bringing on the difficulty; also of the duty to retreat.
There was no error in the refusal to give charges E, F, C, H, and I, requested by the defendant. The matters therein have been treated of in discussing the pleas in abatement and the demurrers thereto.
The judgment of the court is reversed, and the cause remanded.
Beversed and remanded.