Ward v. State

109 So. 897 | Ala. Ct. App. | 1926

Under an indictment which charged this appellant with murder in the first degree, he was convicted of the offense of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for a term of 20 years.

Henry Ward, appellant, killed his wife, Elizabeth Ward, by shooting her in the breast with a pistol. The facts as to this were admitted and without dispute. The defendant insisted that the shooting was accidental, and that the death of his wife resulted from the accidental discharge of his Luger automatic pistol, which he was cleaning at the time of the firing of the shot. The state insisted otherwise, and this, of course, was the controlling question involved upon the trial of this case.

Flight of the defendant to another state immediately after the killing was shown without conflict, and, as the law provides, the accused was allowed full latitude to explain said flight. Thus his purpose in leaving the state was a question for the jury to determine. From this evidence the jury were authorized to find that such flight was from a consciousness of guilt, and to avoid prosecution and escape punishment for the crime, or they could adopt his insistence, if they believed it to be true, that he fled from sheer fright. This evidence, coupled with other evidence tending to show the culpability of the accused and that the shooting was intentional, precluded the right of the defendant to the general affirmative charge. The insistence of counsel to the contrary cannot be sustained.

State witness Mahaley Robinson, daughter of the deceased woman, was admittedly present at the time her mother was killed, and gave evidence of the facts and circumstances attendant upon the killing. On her redirect examination, over the objection and exception of defendant, she was allowed to testify as to the tone of voice used by defendant, when speaking to his wife just before the shooting, as to where his wife had been, and why she did not have supper ready, etc., and she stated in response to the question, "What was the tone of voice when he spoke to her, when he asked her where she had been, whether she cooked him anything?" that "He spoke angrily," also "sounded like an angry voice." The rulings of the court here were in line with the approved and accepted rule and were not error. "A witness may testify that another appeared to be angry." Jenkins v. State, 82 Ala. 25, 2 So. 150. "Witness may state that the defendant was talking mad." Reeves v. State, 96 Ala. 33, 40, 11 So. 296, 299. "A witness may testify that the defendant appeared to be angry." Miller v. State, 107 Ala. 40, 19 So. 37. "The conduct, demeanor, and expressions of the accused, at or about the time of the commission of the offense with which he is charged, are competent evidence against him, their value being determinable by the jury." Blount v. State, 49 Ala. 381.

Other rulings of the court upon the admission of evidence, to which exceptions were reserved, have been examined and considered. They are so clearly free from reversible error no discussion is necessary.

Several objections and motions to exclude certain portions of the solicitor's argument to the jury were made. These objections were not sustained, and the motions overruled; defendant excepted. We find no reversible error in these rulings, and do not regard the utterances complained of as coming within the inhibition of the rules of legitimate argument. As stated, the defendant was not entitled to the general affirmative charge under the conflicting evidence and its attendant inferences. Refused charges 3, 8, and 9 were therefore properly refused.

Refused charge A dealt with the question of flight. The law on this subject was fully covered by the court's oral charge.

Charge 10 refused to defendant is not the law. It was properly refused. Duncan v. State, 20 Ala. App. 209,101 So. 472.

The case of Burton v. State, 107 Ala. 108, 18 So. 284, wherein a charge similar to refused charge 15 here, was approved, has been overruled on this point. Jones v. State,181 Ala. 63, 61 So. 434; Shorter v. State, 209 Ala. 678,96 So. 890. The charge 15 is bad.

Refused charge 21 is wholly abstract under the evidence in this case, as there is not a semblance of evidence tending to show that any person, other than the defendant, committed the crime here complained of.

Refused charge 22 is not the law. Glover v. State, 20 Ala. App. 547,104 So. 48. Moreover, this charge was evidently not intended to be incorporated in this record, as the court is not informed of the connection of James Largin in this case, and this charge deals solely with James Largin as defendant.

The necessity for unanimity of the jury in order to return a verdict was stated in the court's oral charge. Refused charge 26 is on this point. It was covered. The charge itself is an argument, and also invasive of the province of the jury.

Refused charges 27 and 41 do not state the law. They were properly refused, also, as relating to defendant James Largin. The defendant in this case is Henry Ward.

There is no reversible error in any of the court's rulings. The record proper is without error. The judgment of conviction, from which this appeal is taken, will stand affirmed.

Affirmed.