Tittle v. State

Oct 19, 1916

Reporters:: , ,
Before:: Evans

EVANS, J.

Appellant was indicted and convicted of manslaughter in the first degree. Numerous exceptions were reserved to the testimony.

(1-7) The trial court was in error in sustaining the objection to the general question asked witness H. C. Whitley, upon cross-examination, if he had not previously made a different statement about the matter under inquiry. It is elementary that a predicate be first laid, directing the mind of the witness to the time, place, and person involved in the contradictory matter inquired of, so that the witness be apprised with reasonable certainty of the occasion and matter ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in question, before he can be impeached. —Livingston v. State, 7 Ala. App. 43, 49, 61 South. 54; Southern Ry. Co. v. Williams, 21 South. 328, 113 Ala. 620. Whether the aforementioned witness had, on the day of the killing, bought two gallons of whisky, of which one gallon belonged to deceased, was immaterial, and did not tend to prove the intoxication of deceased at the time of the difficulty. — Gregory v. State, 140 Ala. 16, 37 South. 259. Indeed, the intoxication of deceased was not a material inquiry until the evidence tended to establish self- defense. — Harrell’s Case, 166 Ala. 14, 52 South. 345; Gregory’s Case, 140 Ala. 16, 27, 37 South. 259. That defendant’s sister was crying while the fight was going on was immaterial. Conceding that incident to be a part of the res gestae, defendant was not prejudiced by its exclusion. Even if the exclusion operated against him, the subsequent admission of the same matter without objection in defendant’s testimony cured the defect. — Cleve land’s Case, 86 Ala. 1, 5 South. 426; Tarver’s Case, 9 Ala. App. 17, 64 South. 1038; Amos’ Case, 96 Ala. 120, 11 South. 424. There was no merit in the exception reserved to the disallowance of the question put to witness Dobbins, “What, if anything, did ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍he [deceased] say?” referring to a conversation of the witness and one Walter Johnson with deceased on the day of the killing.

“ ‘The record does not show what answer from the witness was expected, so that this court can pass intelligently on the *310 ruling, and we cannot therefore consider it.’ — Tolbert’s Case, 87 Ala. 27 [6 South. 284]; Ross’ Case, 139 Ala. 144 [36 South. 718]. ‘Furthermore, the question was very general, so much so that irrelevant evidence would have been responsive to it.’ Ross’ Case, supra.” — Parham v. State, 147 Ala. 57.

The offer of Columbus Whitley, a brother- of deceased, to purchase a pistol of witness George Hayes, was res inter alios acta, and could only be admissible on the theory of a conspiracy, to be first established to the reasonable satisfaction of the trial judge by prima facie proof of its existence.- — Williams’ Case, 74 Ala. 18; White’s Case, 12 Ala. App. 160, 163, 68 South. 521. The record does not disclose proper preliminary proof or predicate for the introduction of declarations or acts of conspirators.

(8, 9) Objection was made by the state and sustained to the following question propounded to witness Marvin Mitchell: “I will ask you if at the time that fuss was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍going on in the house where you say Kelley Tittle was struck, or being struck, by Gena [deceased], and you say Whitley’s [deceased’s] brother Columbus came up with a knife and made a threat against Kelley Tittle, what he said ?”

While the fight was in progress, what was said and done by. the bystanders was a part of the res geste; but the question does not apprise the court of the materiality of the answer expected, nor was the court apprised of this fact by counsel.

(10) The question propounded to the same witness inquiring, “Did you hear Roseoe make any threats or say anything as he was going up there?” was proper — counsel stating to the court the materiality of the answer expected — and the exclusion of the question was error.

(11-15) Defendant’s written request to charge numbered 1 was properly refused because it singled out and emphasized defendant’s testimony, and because it was argumentative. Defendant’s request No. 3 was properly refused; it did not correctly hypothesize. One is not justified in taking life because of “the belief that he was in danger of losing his life or receiving ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍great bodily harm;” the belief must be honestly and reasonably entertained, and the danger must be or appear imminent. — Compton’s Case, 110 Ala. 24, 20 South. 119; Nabor’s Case, 120 Ala. 323, 25 South. 529; Horn’s Case, 102 Ala. 144, 155, 15 South. 7. Besides the charge pretermits all question of retreat. Defendant’s requests to charge Nos. 13 and 14 were also properly refused. *311 They postulated that .there was no duty upon defendant to retreat. Under the facts in this case, the defendant was not absolved from the duty to retreat. While the record is contradictory and confusing as to’ who started the fight that resulted in the death of Eugene Whitley, it appears that defendant’s elder brother, Alfred, was involved, and that defendant went to his assistance, engaging the deceased. This being the case, the question of freedom from fault would be referred to the guilty participation vel non of the party whose cause defendant made his own; and if the first participant willingly entered the fight, so that self-defense would not have been available to him in case he had struck the fatal blow, neither would it be available to the defendant, who stepped into his shoes. — Wood’s Case, 128 ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Ala. 27, 29 South. 557, 86 Am. St. Rep. 71; Sherrill’s Case, 138 Ala. 3, 16, 35 South. 129; Surginer’s Case, 134 Ala. 120, 32 South. 277; Bostic’s Case, 94 Ala. 45, 10 South. 602. The remaining charge, No. 15, was properly refused to defendant as misleading and because it submitted a question of law to the jury, in that it left to them to determine what was self-defense. — Ragsdale’s Case, 12 Ala. App. 1, 12, 67 South. 783; McGhee’s Case, 178 Ala. 4, 12, 59 South. 573; Roberson’s Case, 183 Ala. 43, 58, 62 South. 837.

For the error above pointed out, the judgment must be reversed, and the cause remanded for another trial.

Reversed and remanded.