Webb v. State

135 Ala. 36 | Ala. | 1902

SHAKPE, J.

On an indictment charging him with the murder of William P. Walton, defendant was convicted of murder in the first degree. On the. trial it was shown that Walton was a police officer of Birmingham. Evidence for the State tended to show that on the night of the killing, defendant had presented a pistol at one John Brown and made Brown have the latter’s room; that about midnight Brown preferred a charge against defendant and requested the deceased to arrest him; that Brown went with deceased and one Cochran through a dark hallway to a closed door leading from the hall into a room where the defendant and one Lilly Page Avere; that deceased then announced to defendant that he was an officer and was there to arrest him, and demanded that the door be opened and attempted to shove it open- that suddenly the door opened and defendant fired several shots, the second of which struck the deceased who died about a minute thereafter; that defendant shot twice after the deceased was shot down; that after he had fired two or three times the deceased fired one shot, and Cochran shot three times at the defendant, who at that time escaped through the door. A witness for the State testified that she was in the room with defendant and heard nothing said in the hall except by Brown, who asked if defendant was in; that she told Brown to go away and have no trouble, and then the door fell in and the shooting began. Brown testified he asked at the door if defendant was in and deceased when at the door said he was an officer, and told defendant to consider himself under arrest. This witness on eross-exaination said that he had never threatened the life of defendant or had any trouble with him previous to the night of the homicide. There was also evidence adduced by the State that defendant after his arrest stated, among other things, “that if he had known it, was Mr. Walton he would not have shot him; that,as he got to the top of the stairs he saw it was an officer and shot him, but did not know it was Mr. Walton.” At this stage of the evidence a witness was examined in behalf of defendant who testified she heard Brown come in the house, and ask if defendant was there, that Lilly Page, told him not to have any fuss and immediately the shooting began and Brown and Cochran ran down the steps; that she was downstairs at the time of the shooting and -when she went upstairs next morning she saw the door broken and lying on the floor, and that everything in the room was broken, that there was a lamp half full of oil, and that she did not know of any fuss between defendant and- Brown . Here defendant asked this witness: “If that night she heard John Brown make any threats against defendant?” The court sustained an objection to this question and defendant excepted. Thereafter other witnesses were examined for the defense, and defendant, according to the bill of exceptions, testified, among other things, “that just before the killing he was talking with John Brown; that they had. no particular fuss, hut that when John left, be said ‘I will get you yet, you son of a hitch.’ In about half an hour, he returned and said ‘Open the door,’ and the dooi began to break in from the outside. Witness then threw his hand up to catch the door; the lamp went out and the door fell. Just then he saw the barrel of a pistol pointing in the door, and the door fell against his arm, and he immediately fired two shots; that shots came from the outside, however, before he fired any shots; that he did not know the. policeman was there; did not hear him say he came to arrest him, but thought it ivas John coming back to .renew the. difficulty, that he thought he was shooting at John Brown all the time, that he did not know he had •shot the policeman or any body else except Brown until some time after his arrest. * * One shot was fired before he fired at all and the first shot struck him in the arm, that he never saw any one at all when he was firing.”

The objection to the question above referred to ivas properly sustained. Brown’s statement in denial of threats ivas not made with reference to any particular time or place brought to his attention so as to lay a predicate for impeaching him. The inquiry extended to the whole night including that part of it which followed as well as that part which preceded the shooting and, therefore, cannot- be considered as relating merely to the res gestae of the. homicide; but if the question could be construed as calling for threats uttered before the shooting, it would have been objectionable in the absence of anything to indicate such threats had been communicated to defendant. There are cases involving self-defénse where under the rules laid down in Roberts v. State, 68 Ala. 156, uncommunicated threats are admissible as tending to show which of the parties to a difficulty was the aggressor, and also as showing the 'animus of an attack made on a defendant, and such threats are sometimes provable as corroborative of evidence of other threats which were communicated; but there was no evidence that defendant was really being attacked by Brown, and threats of which he was ignorant could not have any .agency in inducing him to apprehend an attack from Brown. Nor bad there been before the ruling any evidence adduced of threats communicated to the defend-aud tvhich could have been strengthened by proof of other threats, and the court was not bound to admit evidence which .was prima facie irrelevant in anticipation that it might become relevant at a later stage of the trial.

Except a change in the name of the person slain, the;charges refused to defendant are copies of charges which in Daughdrill v. State, 113 Ala. 9, were condemned as having a tendency to mislead the jury as to-what constitutes the deliberation and premeditation which are necessary ingredients of murder in the first degree. The charges are bad for the reasons given in the opinion in DaughclrilVs case, and in view of the circumstances disclosed by the evidence, the charges were bad for the reason that they each assume a specific intent to-kill the deceased Avars essential to make the defendant guilty of murder in the first degree, whereas neither the fact nor degree of his guilt depended on Avhether he knew the identity of the person at whom he shot.

What the solicitor said in disclaiming pecuniary interest in the case and all interest except to see the law enforced Avas not Avithout the latitude alloAvable in argument of counsel.—Taylor v. State, 134 Mo. 109, 35 S. W. Rep. 92.

The. facts relating to defendant’s motion for a continuance do not show the refusal of that motion involved any abuse of the court’s discretion.

No reversible error is found in the record.

Affirmed.