Wilson v. State, 140 Ala. 43

Wilson v. State

140 Ala. 43 | Ala. | 1903

McOLELLAN, C. J.

The usual form of the inquiry on the subject is to ask the witness AArhether he heard the defendant make any threats against the deceased. If this form of question is objectionable as calling for a conclusion, no harm results AAdiere the Avitness, as did Hooks and Parrish in this case, answers by repeating a declaration made by the defendant which is a threat against the deceased.

Threats by the deceased against the defendant are inadmissible unless it is proposed to show that they were ’ communicated to the defendant, or that there is a question in the case as to Avhether the deceased was the aggressor or made hostile demonstrations tending to produce a belief on the part of the defendant at the time of the fatal act that he Avas in peril of life or limb or grievous bodily harm. Nothing of this sort aatis in the case *51nor proposed when it was sought to prove threats of the deceased by the witness Parrish, and the action of the court in sustaining an objection to the question in that behalf was free from error.

No predicate as for a dying declaration was laid for the proposed evidence as to what deceased said about the shooting, nor was such statement shown to be of the res gestae of the occurrence. . The court, therefore, properly excluded the evidence of such statements sought to be elicited from the witness Carter.-Johnson v. State, 94 Ala. 35.

The objection to the testimony of the father of the deceased as to dying declarations that the corpus delicti had not been proved, Avas without merit. Evidence had been received going to show the death of Webb from a gun shot wound inflicted by defendant.

The evidence as to the residence, and indefinite absence from the State, of O. H. Franklin, Avas sufficient as a predicate for proof of his testimony on the preliminary trial.-Jacobi v. State, 133 Ala. 1.

The court committed no error in giving the charge requested by the State.-Compton v. State, 110 Ala. 24, 37.

Charge 2 refused to defendant pretermits inquiry as to defendant’s fault in bringing on the difficulty. It is also bad in assuming that any “action” on the part of the deceased proAroeative in point of fact of passion on the part of the defendant would be sufficient provocation in point of law.

Charge 4 requested by defendant was bad for that it AA’as necessary to justify defendant on the theory of self-defense not only that lie should have honestly believed he was in imminent peril, as the charge hypothesizes, but also that the circumstances Avere such as to reasonably impress him with that belief, which the charge does not hypothesize. Moreover, this charge Avas abstract in one or more- of its postulates.

It Avill suffice to say in support of the court’s refusal to give charge 7 that said charge was argumentative.

Charge 9 is elliptical and confused in its terms.

The tendency of charge 11 was to confuse the jury and to instruct them to acquit the defendant or to a mistrial *52upon a reasonable doubt that he was guilty of the offense in terms charged in the indictment, when no such doubt may have existed in the mind of any juror in respect to his guilt of lower grades of homicide covered by the indictment, but not in terms charged therein.

Charge 12 has the same infirmity, and is also bad for its tendency to require the jury to base conviction alone on the evidence adduced by the State, when some incriminating evidence was introduced by the defendant. Sanders v. State, 134 Ala. 74.

Charge 18 was properly refused.-Miller v. State, 107 Ala. 40.

Charge 19, like charge 2, fails to negative defendant’s fault in bringing on the difficulty.

We find no error in the record and the judgment must be affirmed.