6 Div. 982. | Ala. Ct. App. | Jun 6, 1922
The defendant having been convicted of manslaughter, charges defining malice, if error, could not affect the defendant's substantial rights injuriously. Therefore that part of the court's oral charge stating the presumption of malice where a deadly weapon is used, will not be reviewed.
The excerpt from the court's oral charge, as follows:
"You should believe the witnesses and the evidence which you believe to be true, and disbelieve the witnesses and the evidence which you believe to be untrue"
— is not a full statement of the court's charge upon that subject, and, while taken alone, would appear to be erroneous, when the whole sentence is read, the law is correctly stated. Fragments of sentences, taken here and there from the oral charge of the court, will not be considered, except in connection with the whole charge on the subject.
The charges of the court on the question of self-defense and reasonable doubt were clear, and, so far as can be seen from this record, free from any undue emphasis upon any of the material ingredients necessary to make out the plea.
There was no evidence in this case which would have warranted the jury in returning a verdict of manslaughter in the second degree, and hence the court properly refused to charge on that degree of homicide.
The principles of law involved in refused charge 5 were amply covered by charges 4 and 6, given in writing at the request of defendant.
Charge 14 is an argument.
Charge 15 was invasive of the province of the jury, and was properly refused.
That part of the witness Minnie Johnson's testimony which was irrelevant was ruled out on the objection of defendant, but as to what the defendant said and did to her just inside the church door, and what she said to her father immediately after defendant had caught witness and made an improper proposal to her, her father being then and there present and the difficulty immediately began, was a part of the res gestæ, and was relevant. Windom v. State (7 Div. 770)
As to whether deceased had been selling whisky that day at his house to various parties who had come there to buy was immaterial. The killing took place at the church, and away from the house of deceased, and, even if deceased had sold whisky at his house to all the parties who went there, that fact would in no way tend to excuse the defendant from the charge of murder.
The court properly excluded the testimony of the witness Hollingsworth that defendant went to the house of deceased on the day of the killing to meet one Joe Smith, for three reasons, if no more: (1) The testimony was based on the statement of defendant at a time when Joe Smith was not present, and was the merest hearsay; (2) the difficulty resulting in the killing did not occur at the house of deceased, but at the church or schoolhouse, some 250 yards away; (3) if the purpose of defendant in going was to meet Joe Smith at the house of deceased during that day, the day was gone and night had fallen. Moreover, the defendant testified to these facts while he was being examined as a witness without objection, and, not being disputed, he received the full benefit of the evidence on this point.
What words were passed between defendant and deceased at another time and place were clearly irrelevant. The other rulings of the court on the admission of testimony were clearly free from error.
The court did not abuse his discretion or deprive defendant of any constitutional right, by placing a limit of 45 minutes on defendant's counsel in making his argument to the jury, at least it does not so appear from the record.
Nor do we think the remark of the deputy solicitor, to which exception was taken, is sufficient to justify a reversal of this judgment.
We find no error in the record, and the judgment is affirmed.
Affirmed.