65 So. 863 | Ala. Ct. App. | 1914
The defendant was indicted for murder in the first degree, and convicted of murder in the second degree.
There was no eye witness to the hilling, and the body of the deceased, Henry Freeman, was not discovered until several hours after his death. All the evidence as to the commission of the crime, and all the evidence tending to show that the defendant was the author thereof, was entirely circumstantial. These circumstances, however, were both strong and well-connected, and in our opinion were such, if believed, as to exclude every other reasonable hypothesis than that a homicide had been committed and than that defendant was guilty of the commission thereof.
In the course of the trial the defendant reserved some 92 exceptions to the rulings of the trial court, all of them relating, respectively, to the admission and rejection of evidence and to the refusal to give certain written charges, including the general affirmative charge requested by defendant. In response to the duty imposed upon us by law in criminal cases, we have not only carefully examined these exceptions, hut have
The first exception insisted upon has reference to the action of the trial court in overruling defendant’s objection to the following question propounded by the solicitor to one of the state’s witnesses: “Well, did you observe the manner and demeanor of this man [speaking of defendant] before you arrested him, and was it nervous or not?” The witness answered: “Yes, sir; he appeared nervous.” One of the insistences, in brief, is that the question was leading. Conceding this to be true, that defect was not pointed out in either of the objections to the question, and, even if it had been, the
There was no injury, if error, in permitting the state’s witness, Dr. Maxwell, to testify that there was a difference in size between a 32 and 38-caliber pistol ball. It was a correct statement of a fact of common knowledge and observation, known as well to the jury as to the witness.
Nor was there error in permitting the witness tó state that he extracted from the body of the deceased the balls or bullets found therein, and weighed them, and that one weighed 100 grains and the other 99]4 grains. These facts were merely links in the chain of circumstantial facts proved by the state, and from which the jury were asked to infer the guilt of defendant. Standing alone, they would have been without probative force, but when coupled and connected, as they were in the evidence, with the other facts and circumstances proved, they were material, and tended to strengthen the inference of defendant’s guilt.
Charge 2 was properly refused. — Bohlman v. State, 135 Ala. 48, 33 South. 44; Bowen v. State, 140 Ala. 66, 37 South. 233.
Charge 3 was also properly refused, as was so held in Bohlman v. State, 135 Ala. 50, 33 South. 44, which overruled Gilmore v. State, 99 Ala. 154, 13 South. 536. The former case has been subsequently followed. — Oakley v. State, 135 Ala. 35, 33 South. 693; Pitman v. State, 148 Ala. 617, 42 South. 993; Bowen v. State, 140 Ala. 66, 37 South. 233; Fowler v. State, 155 Ala. 28, 45 South. 913; Phillips v. State, 162 Ala. 24, 50 South. 194.
Charge 4 is so patently faulty as not to require the citation of authority for condemning it. Besides, if it were a good charge, it is fully covered by given charges, 5, 10, and 10%.
Charge 5 is covered by given charge 8. Besides, the charge as here worded, is not a good charge in a murder case for reasons pointed out in Davis v. State, 8 Ala. App. 159, 62 South. 1027.
Charge 6 is the affirmative charge.
Charge 7 was properly refused. — Bowen v. State, 140 Ala. 66, 37 South. 233.
Charge 8 is fully covered by given charge 16.
Charge 9 is clearly faulty. The jury may have a reasonable doubt as to how the killing occurred, and yet believe beyond a reasonable doubt that the defendant was guilty of doing the killing, and that with a pistol.
Charge 10 is a practical duplicate of refused charge 3, that has already been considered and condemned.
Charge 11 was properly refused. — B. R., L. & P. Co. v. Adkins, 8 Ala. App. 557, 62 South. 367.
It follows from what we have said that the judgment of conviction must be affirmed.
Affirmed.