65 So. 950 | Ala. | 1914
While it has long been settled by the decisions of this court that the violent character of the deceased may be shown by the defendant in a homicide case, the right to do so arises only after there has been evidence tending to show self-defense; that is, some overt act or hostile demonstration upon,the part of the deceased. At the time the defendant attempted to prove the character of the deceased, by the witness John Minshew, there had been no evidence tending to show that the deceased was the aggressor, and the trial court did not err in declining to let the defendant prove this fact, although the evidence may have been rendered admissible by the subsequent development of the defendant’s evidence, had it been subsequently offered.
While the state had a right to show a former difficulty between the defendant and the deceased, it had no right to go into the details or particulars.—Bluett v. State, 151 Ala. 41, 44 South. 84; Robinson v. State, 155 Ala. 67, 45 South. 916; Patterson v. State, 156 Ala. 62, 47 South. 52. The trial court committed reversible error in permitting the details and particulars of the prior difficulty. Nor was it so- closely connected with the killing as to be one and the same transaction and so contemporaneous therewith as to make it a part of the res gestae. The proof shows that the former difficulty had ended when the defendant left and went to a store, where he remained four or five minutes.-—State v. Stallings, 142 Ala. 112, 38 South. 261.
The Constitution requires an indictment in cases of this character before the accused can be put upon trial, and the common-law as well as the statutory form of indictment for murder requires that the name of the party slain must be set out, and the state is required to prove the name so set out; otherwise there is a variance fatal to a conviction. The statute authorizes an amendment of the indictment, with the consent of the defendant, to meet the variance, and if the defendant does not consent he can be held over to await a new indictment, and the former one will be no bar to the prosecution. Either the correct names of the defendant or the one by which he is generally known can be ascertained, and care and caution on the part of the scrivener will often save trouble, delay, and expense, and often avoid reversals by the appellate courts, upon points which may seem technical to the laymen, but which go to the essence of the crime, and as to which accuracy is contemplated by the law of the land. The indictment in this case charged that the defendant killed “B. Sagers,” alias “B. Segers.” The undisputed evidence shows that his real name was “B. Sagar,” and, while some evidence shows that he was called “Segers,” the weight of it shows that he was called “Sagar,” and that his alias was “Shorty.” At any rate, the defendant was entitled to a charge that the name of the deceased had to be proven as alleged though it may be that the action of the trial court in refusing charges 23 and 24 can be justified because they did not correctly state the alias as stated in the indictment. It is difficult to say that
The other charges refused the defendant were bad or covered by the given charges.
The judgment of the city court is reversed, and the cause is remanded.
Reversed and remanded.