Stevens v. State

138 Ala. 71 | Ala. | 1902

TYSON, J.

On the facts shown in the record, it cannot be affirmed that the court abused its discretion in refusing the defendant’s motion for a continuance. Walker v. The State, 117 Ala. 85; Kilgore v. The State, 124 Ala. 24; Huskey v. The State, 129 Ala. 94.

The statement of deceased made to his brother, immediately after the difficulty, that he was killed, tended to give character to the act of defendant, and was near enough in point of time to be within the mile making it a part of the res gestae of the act of homicide. It was properly admitted.

Dr. Morris, a practicing physician, who examined the wounds of deceased, testified that he found that he had been twice shot by a pistol and was fatally wounded. One bullet entered the right arm below the elbow and passed directly through it and the other entered the left side near the medial line and ranged downwards and was extracted by him from under the skin on the right side. This witness was allowed against the objection of defendant to answer, in response to the question, “whether it was possible from the wound received in the right forearm for Weston [deceased] to have had his arm raised so as to present his pistol in a firing position at defendant when shot?” that “due to the range of the bullet it was impossible for Weston to have had his pistol presented or his arm extended towards defendant at the time he was shot; that Weston’s arm could only have been hanging bv his side or extended straight up and could not have, been directed towards defendant in the position of presenting or aiming the pistol.” He further testified that “judging from the wound in Weston's side he could not have been facing the defendant at the time of the shooting but was shot while standing sideways.” This latter statement was also objected to. Irrespective of whether the witness was an expert as to firearms or the range or deflection of bullets fired from cartridges, it seems clear to us that the statements objected to were but statements of physical facts — of a truism well known to the jury, and that no error was committed in their admission of injury to defendant. A similar question was before this court in Miller v. The State, 107 Ala. 40, 56. In that case the State was allowed to prove that the muzzle of a pistol would have to be Arery close to clothing to scorch it. This court said: “That, it is of common knowledge that the muzzle of a pistol must be Amry close to clothing, Avlien fired, to scorch it; and Avhile not necessary to be proven there can be no possible injury to the defendant in permitting a fact to be proven which is already knoAvn to the jury, exactly as testified to.”

The prosecution had, undoubtedly, the right, to anticipate the defense of self-defense, predicated upon the theory that deceased brought on the difficulty and that he Avas in the act of shooting the defendant with a pistol when the shots were fired by defendant. -

The dying declarations of deceased were properly admitted.. — 1 Mayfield’s Dig., p. 285, §§ 1 et seq.

Defendant’s Avitness Williams stated that he suav the deceased on the evening of the killing about half past four o’clock at Zachie’s saloon, and that he was drinking though not so drunk that he couldn’t walk. Defendant’s counsel then asked this witness, “What did Weston do to indicate that he Avas drunk or drinking?” and “What did he, Weston, do?” We are unable to see the pertinency of these questions. The samé may be said of the question propounded, on cross-examination, to the State’s witness Gothard.

We entertain the opinion that the confession of defendant made to Gothard Avas shown to have been voluntary and that the court committed no error in admitting it. Tt is true, he is shown to have been an officer and armed, but he made no threat or held out any inducement. Tlie fact that lie was an armed officer and that defendant was under arrest made by him is of no consequence. — Aaron v. The State, 37 Ala. 106; Spicer v. The State, 69 Ala. 169; McElroy v. The State, 75 Ala. 9; Dodson v. The State, 86 Ala. 69; Hornsby v. The State, 94 Ala. 64; McQueen v. The State, Ib. 50; Fuller v. The State, 117 Ala. 36.

The fact that the defendant was frightened and apprehended that he would be killed or hanged which he expressed to the witness does not make the confession involuntary in view of the assurance of the arresting officer to the contrary, and that he was only going to take him to jail.— Young v. The State, 68 Ala. 569, 580.

In rebuttal of Williams’ testimony it was entirely competent for the State to show by the father of deceased that on the afternoon of the killing his son was engaged until late in the evening in hauling household goods from the country to his home and that he was not drinking; and that the place in the country from which he was hauling the goods was in a different direction from Zachie’s saloon, and that the road which his son travelled did not pass by the saloon.

This brings us to a consideration of the exceptions reserved to the oral charge of the court. There are a number of them. But the only one insisted upon raises the same question that is raised by certain written charges (numbered 2, 3, 4, and 5), requested by defendant, a disposition of which will decide the merits of this exception. So then, we will postpone a discussion of this point until we come to deal with those charges. However, before considering the, written charges, it may be well for us to say that we have examined the other exceptions to the oral charge and find them to be unmei'itorious.

The written charges given for the State and refused to defendant were not numbered, but for convenient reference we have numbered them upon the margin of the record, and refer to them by these numbers. Charge 1 requested by defendant and refused is an exact duplicate of one that was given. Besides, it was incorrect and should not have been given because it invaded the province of the jury.

Charges 2, 3, 4, and 5 attempted to invoice the doctrine so often declared by this court that a person attacked in his own dwelling house or place of business is not required to retreat. On the facts of this case the defendant has fallen far short of bringing himself within the protection of this principle. They simply show that he was “flunkeying” around the saloon, whatever that may mean, the owner of which seems to have been operating the gaming tables in the cellar when and where the difficulty occurred. This fact does not show that he was engaged as an employe to operate the tables or to perform any other service as an employe in the cellar. These charges were properly refused and the oral charge on this point was correct.

Charge 6 was a mere argument.

Charge 7, of course, should not have been given.

Each of the charges given at the request of the solicitor asserted correct and familiar propositions of law, and there was no error in the giving of either of them..

Affirmed.