44 So. 90 | Ala. | 1907
The appellant was convicted of the crime of murder in the first degree. A motion in arrest of judgment,was made, assigning as one of the errors that no counsel had been appointed to defend the defendant, until after he had been arraigned and had pleaded to the indictment; and counsel in argument insist earnestly on this point. We find from an inspection of the record that, not only does it fail to disclose the fact that said defendant was not able to employ counsel, but it does state that, when the defendant wa s first arraigned, he appeared “in his own proper person and by attorney.” While the bill of exceptions does, state that B. L. Chappell, Esq., was appointed to defend after the arraignment, yet the record cannot be contradicted in this way.
While organizing the jury for the trial of the case, the court, at the request of the state, asked Keeler, who had been summoned as a juror, “Would you hang on circumstantial evidence?” to which question the defendant objected, and the objection was overruled. There-was no error in this. In this case the question of the punishment was to be determined by the jury, as well as that of guilt or innocence. Hence it was proper to-inquire whether he would be willing to inflict the extreme penalty of the law on circumstantial evidence.
The objection by the defendant to the juror Crawford was properly overruled. — Jarvis v. State, 138 Ala. 17, head note 1, 34 South. 1025.
The questions to the witness Brent as to whether a complaint had been made that gaming was going on in the house, and as to the woman who reported it, stating that her husband was in it, whether strictly relevant or-
There was no error in sustaining the objection of the state to the question to the witness Brent, “You arrested a negro named Columbus Ward?” as that was immaterial to any issue in the case.
In view of the fact that there was evidence tending to show that at the time of the shooting the deceased was attempting to put handcuffs on one Scott, and that the handcuffs referred- to were those belonging to the deceased, it was proper to allow the witness Helton to state whether or not he found any handcuffs in the possession of the defendant.
There was no error in allowing said witness Helton to state what he said to defendant when he arrested him, as all that was said was material, to show whether any threats or inducements were offered to induce the defendant to make any statement iii the nature of a confession.
There was no error in sustaining the objection of the state to the question to -witness Helton, “Is it not a fact that there is always a crowd of them there?” The question does not indicate what place he was inquiring about, nor to whom the word “them” referred, and, in addition, was irrelevant.
If there was error in sustaining the objections of the state to the question to the witness Helton, “Did not know they were Abernathy’s cuffs?” it was cured by the fact that the question was afterwards asked and answered. It was proper to allow the state to ask questions as to the oivnership of the cuffs, as a circumstance to go to the jury, in determining whether the defendant was the man who shot at the time the cuffs were taken.
From what has been said, it is evident that the questions to the witness Nalls and others in regard to the handcuffs were proper, as was also the exhibition of the handcuffs themselves. While the identification may not have been complete, yet there was sufficient evidence to go to the jury.
There was no error in sustaining the objection by the state to the question to the ‘witness Hill, “Did that man allow you to game at his hop jack?” as it was irrelevant.
The permitting of Mrs. Abernathy to testify, after having been in the courtroom during the trial, was a matter within the discretion of the court. — Hall v. State, 137 Ala. 44, 34 South. 680.
The objections to questions by the defendant as to whether the defendant owned a pistol, and whether he had one when he left home, were properly sustained.
The question to the witness Blair, by defendant, as to contradictory statements by Jim Hill and Columbus Ward, was properly excluded until a predicate could' be laid.
The oral charge, given by the court, was faulty in leaving to the jury to determine the question of law as to what is a proper manner for making the arrest, and .also because it did not hypothesize a knowledge on the part of the defendant, of the official character of the party making the arrest. — James v. State, 79 Ala. 23, 25.
The charges asked by the defendant were properly refused. Charge A is faulty, in requiring the evidence to exclude “every other hypothesis,” in place of “reasonable hypothesis.” Charge B is faulty in stating that the
The judgment of the court is reversed, and the cause is remanded.
Reversed and remanded.
