46 So. 778 | Ala. | 1908
The first witness for tlie state was Albert or Son McDaniel, a nephew of'the deceased, John McDaniel, who testified, that the killing occurred at the home of witness; that Willie and Jane Thorington, Nellie Timothy and Bob Motley, were all there; that John McDaniel, the deceased, was sitting in a rocking chair, with his hat pulled down oyer his face, in front of the fire place; that the defendant walked in the house a,nd commenced stabbing deceased; that he stabbed him in the head, and then pushed him down, and cut him in the face and on his arm, and at the time he was cutting him, he had deceased down and was on top of him.
Defendant’s counsel, on the cross, asked the witness, “What was Willie Thorington doing there at 11 o’clock at night?” to which question the solicitor objected, and the objection was sustained, and in this, there was no error, as it was immaterial what Willie was doing at the scene of the trouble at 11 o’clock that night.
Defendant’s counsel asked him further: “You and Bob Motley lived there, and permitted this man, John McDaniel, to come into your house and be cut up as you have described? Your uncle, John McDaniel, was there on the floor in your house? Bob Motley was asleep and you, so scared, and the other man ran out of the house?”
The solicitor objected to the question because it "was three questions in one. The court acted within its discretion in sustaining the objection. It was involved and misleading, and difficult to be answered intelligently.
The witness, Willie Thorington, testifying for the state, stated, that she did not know that defendant had ever whipped her, or had ever hit her or done anything to her, at Bob Motley’s house or elsewhere. The solicitor, after stating that he was surprised by this testimony, and to refresh the memory of the witness, asked her if
Taking the question in connection with the answer of the witness, we find no error prejudicial to the defendant-For the same reasons, exception 5, as indicated on the record, cannot avail defendant anything.
The question of the solicitor to the witness, whether, “Is it not a fact that John Washington came into that house and started the trouble by hitting John McDaniel on the back of the head?” was permissible. An affirmative answer would have been a mere shorthand rendering of the facts. The defendant, by cross-examination, could have elicited all the facts in detail, within the knowledge of the witness, and he cannot complain of the generality of the statement of the witness, which, by such examination, could have been obviated. Miller v. State, 107 Ala. 57, 19 South. 37; Lewis v. State, 41 Ala. 414. The witness answered, that defendant came and began stabbing John McDaniel in the head while he was sitting down in the chair. Without reference to the question, whether objectionable or not, this answer was clearly competent, and was not objected to by defendant.
Counsel for defendant asked the witness, Jane Thor-ington, “If Albert McDaniel was standing up there, with his head on the mantelpiece?” The solicitor objected because the question was leading. Albert had stated in his examination, that he was standing with his head on the mantelpiece, when the defendant came in, or when the fight started, and counsel for defendant desired an answer to the question, to impeach the witness, Albert McDaniel. The question was confessedly leading, and
The same thing may be said as to question propounded to the witness on page 14 of the record, as to what Son McDaniel and Bob Motley did. The court stated, he would allow the defendant to ask what these persons did. As to Bob Motley, the defendant asked the witness what he did, and it was answered.
On cross-examination of defendant’s witness, Amos Webb, he testified that he did not know that Willie Thor-ington was defendant’s girl, though she came down to the store (where witness worked) to see him sometimes.
The defendant moved to exclude the answer.
It was admissible as tending to show motive on defendant’s part for killing deceased. Marler v. State, 68 Ala. 584.
The defendant’s counsel asked the state’s witness, Nellie Timothy, “If Boh Motley was her sweetheart?” The solicitor objected on grounds stated; but there was no exception reserved. What purports to be a reservation of exception is, “The court overruled defendant’s objection, and defendant duly and legally éxcepted.”
John Dixon, for the defendant, on cross-examination by the state, testified, that he did not know what deceased was going to kill defendant about, and did not know that Willie Thorington was defendant’s girl, and defend-an t never told him so. “Defendant moved to exclude the answer of the witness, that Willie Thorington was not defendant’s girl, or that defendant had never told him so.” The court overruled the objection. Deceased had told defendant, as the witness testified, that he was going to kill him, the defendant. We discover nothing in this prejudicial to defendant. If of any importance, it was rather favorable to defendant than otherwise. It
Charge 6, requested by defendant, was not improperly refused. Homicide may be committed in the heat of passion suddenly aroused by a blow, and yet be done maliciously. Suddenly aroused passion and malice may coexist, and both cause the act. Martin v. State, 119 Ala. 1, 25 South. 255. This principle is not hypothesized in the charge. The defendant might have been convicted of manslaughter, of which malice aforethought is not an ingredient.
The evidence in this case is without conflict, to the effect, that the wounds inflicted on the deceased were properly treated, and that one of the wounds caused the death of the deceased. Hence, the charges seeking to raise the question that the death was the result of malpractice were properly refused.
The other charges refused to defendant are patently had, and the court committed no error in refusing them..
Affirmed.
