137 Ala. 22 | Ala. | 1902
Defendant was convicted on an, indictment charging him with the murder of Bob Davidson. On the trial it was shown that the deceased was killed by a shot fired about dark on Thursday evening when he was near his house, and at a lot where he had gone to attend to his mules. The evidence introduced to connect the defendant with the crime was mainly circumstantial. Against defendant’s objection, Lulu Davidson, widow of deceased, was allowed to testify as recited in the bill of exceptions “that some one came to their house on the Sunday night before the killing after they had gone to bed and knocked on the side of the house, but left without saying anything when Bob got up to see who it was.” In the record there is nothing-tending either directly or inferentially to connect the defendant -with the occurrence so testified about. Had there been evidence, tending to show the deceased had on the occasion of the shooting been decoyed from his house by a knocking on the house or other similar means, it may be that the mere coincidence could have furnished an inference of identity as between the person who did the knocking-and the slayer, and therefore an inference that the shooting was in consummation of a previously formed and continuing 'murderous intent. But there is here a lack of evidence -of that character. The testimony so objected to was irrelevant. Its admission was error which may have been prejudicial to defendant, and consequently the judgment must be reversed.
It was permissible for the witness Andmvs to testify that a track he saw on Saturday after the shooting and which led from defendant’s barn along a field and ditch towmrds defendant’s house, looked, where it left the barn, like the track of a person running, and in the field, looked like the person was wmlking. These statements were not of opinion merely but were descriptive
Decisions of this court have, established that a defends ant in a criminal case, by exercising the privilege given him by the statute of testifying, waives the constitutional right to protection against compulsion to give evidence against himself and becomes subject to cross-examination and impeachment as are other witnesses. Clarke v. State, 78 Ala. 474; Thomas v. State, 100 Ala. 53; Williams v. State, 98 Ala. 52. This principle was in Hicks v. State, 99 Ala. 169, applied as authorizing the State by way of impeaching a defendant as a witness to make proof of confessions not'shown to have been voluntary. The court’s action in permitting the State to inquire of, and to adduce evidence of, the statements objected to as confessions, was in accordance with what was held in the cases above referred to, and was not erroneous.
The charges refused to the defendant were each bad. Charge number one would have tended to' mislead the jury to acquit on a reasonable, doubt arising from part of the evidence though consideration of the evidence as a whole might have dispelled such doubt. — Liner v. State, 124 Ala. 1; Nicholson v. State, 117 Ala. 32. Number ten is argumentative. It is in the terms of other charges that have been condemned by decisions of this court.— See Amos v. State, 123 Ala. 50; Rogers v. State, 117 Ala. 9. The jury is not required to pass on the credibility or truth of statements made by one who is subsequently examined as a witness and which are given in evidence merely by way of contradicting and thereby impeaching his credibility as a witness. The contrary is implied by the terms of refused charges 16, 19 and 22, and in that respect those charges are misleading.
Reversed and remanded.