74 Ala. 21 | Ala. | 1883
— In the cross-examination of witnesses for the prosecution, the defense sought to impeach them, by introducing their written testimony taken down when they were examined as witnesses on the committing trial of Jane Vills, who was charged with participation in the homicide, for which her husband, Randall Wills, was on trial. In each examination, the testimony related to one and the same altercation; and the testimony on the committing trial of Jane was sworn to and subscribed by the respective witnesses. Counsel'for the defense read to witnesses detached sentences of said written testimony, and asked them if they had not so testified on the committing trial. On objection and motion by counsel for the prosecution, the court ruled that the entire affidavits, or sworn testimony, should be shown, or, rather, read to the witnesses (they could not read), before the latter should be required to answer. In this the Circuit Court conformed to what we consider the true and sound rule on the subject. “ A witness is not bound to answer as to matters reduced to writing by himself or another, and subscribed by him, until after the writing has been produced and read or shown to him.” — Newconib v. Griswold, 24 N. T.
After the witnesses had been cross-examined as to the contents of the sworn testimony, with-a view of showing discrepancy between it and the testimony then being given, there was no error in permitting the prosecuting attorney to read to the jury the entire written testimony of the witnesses, thus attempted to be discredited. It was but just that tire whole connected statement should go before the jury, to enable that body to institute a comparison between the two statements. It was competent for no other purpose. If the defendant apprehended the jury would treat the affidavits as original and general evidence in the case, that was a subject for a charge, limiting its operation. To put the court in error, such charge must have been requested and refused. — 1 Brick. Digest, 809, § 87; Ib. 810, § 98.
There is nothing in the other points raised as to the admissibility of evidence. The dying' declarations of the deceased were clearly admissible. — Kilgore v. The State, at present term. The pre-requisite is, that they shall be made under a sense of impending dissolution. When this is shown, the testimony is properly admitted, although the declarant may never have expressed the conviction that he or she must die.
Charges 1 and 2 asked by defendant were rightly refused. If a blow be intentionally or voluntarily given, with a deadly weapon, and not in self-defense, or under other legal excuse, and the result be the death of a human being, even though not the person aimed at, this can not be less than manslaughter in the first degree, and may be murder. The depraved heart, or unlawful will, with which the instrument of death is hurled at one, accompanies 'and characterizes the fatal blow, which falls on another by misadventure. — Code of 1876, §§ 4295, 4300; McManus v. The State, 36 Ala. 285; Judge v. The State, 58 Ala. 406.
Charge 3 was rightly refused, because the record contains no evidence, either that defendant’s wife needed protection from Coleman, or that defendant apprehended there was such need.
Charge No. 4 would assert a correct legal proposition, if the words, “he can not he convicted of voluntarily hilling Lucy Coleman,” had been omitted. We have shown above that a specific intention to kill Lucy Coleman, was not necessary to defendant’s conviction of manslatighter in the first degree. The words copied and italicized above would tend at least to confuse and mislead the jury, and for that reason the charge was rightly
The charge given at the instance of the prosecution is free from error.
Let the judgment of the Circuit Court be affirmed, and the sentence of the law be executed.
