93 So. 79
Ala. Ct. App.
1922
SAMFORD, J.

[1] The statute (Acts 1915, p. 722), amendatory of section 2846 of the Code of 1907, providing for review by appellate courts of action of trial courts in granting or refusing motions for new trials, requires that exception be taken to the decision of the court, and that the substance ■of the evidence in the case shall be reduced to writing, and also the decision of the court on the motion, and the evidence taken in support of the motion and the decision of the court shall be included in the bill of exceptions. We have carefully examined the bill of exceptions, and do not find any exception reserved to the action of the court in overruling the motion for a new trial. In the absence of such exception, we are without power to consider the motion for a new trial. Ross v. State, 16 Ala. App. 393, 78 South. 309; Stover v. State, 204 Ala. 311, 85 South. 393; Birmingham W. W. Co. v. Justice, 204 Ala. 547, 86 South. 389; Powell v. Folmar, 201 Ala. 271, 78 South. 47; Stokes v. Hinton, 197 Ala. 230, 72 South. 503.

The defendant and twp sons of deceased were engaged in a difficulty, a short distance from the store of deceased. Defendant drew a pistol and pointed it at the two sons. At this point one of the sons called to another brother, and told him to run and tell his father to come. This brother fan to the store and informed his father, who immediately looked for a pistol and, failing to find it, caught up a stick and rushed to the assistance of his sons, and, seeing the pistol in defendant’s hand pointed at his sons, grabbed hold of the pistol, which was thereupon discharged by defendant, the bullet taking effect in the bowels of deceased. The father and one son grappled with defendant, and all of them fell; the deceased getting possession of the pistol, and afterwards, letting another take it, he fell, as a result of the wound. One Stewart, who was standing by, was asked to assist deceased in rising and to aid in carrying him home, and refused. The wound was mortal, and resulted In death in about two weeks.

[2-4] Soon after deceased was shot, he-said he would die as a result of the wound, and several times so stated, evidencing a knowledge and belief in liis impending dissolution. The predicate for a dying declaration was amply proven, and the statements of the deceased, where relevant, were properly admitted in evidence. Some three hours before death, the deceased made and signed a statement as to what occurred during the-difficulty, and, the proper predicate having been laid, this statement was admissible in-evidence; but this admission of this statement .did not preclude the admission of other verbal statements made by deceased, where proper predicates had been laid, and where witnesses testified to what the writing contained, such testimony could not. possibly injuriously affect the defendant’s rights. If the statements were the same as contained in the writing, such testimony could add nothing to the probative force of the writing; and if the testimony varied the written statement, such testimony would have been beneficial to defendant’s case.

[5] What was said and done by the deceased in preparation for the affray, after he was notified by his son, was so close in point of time and place as to be a part of the res gestee of the .difficulty, and was therefore admissible.

[6] The question, asked defendant on cross-examination, “Xou had not been picking any cotton, had you?” was legitimate, and the objection of defendant to it was properly overruled. Besides, the defendant answered that he had, and, if the answer- *433 was material a't all it was beneficial to defendant.

[7] It appearing that defendant’s arm was in a bandage when he was on trial and testifying, it was permissible for the court to allow the solicitor on cross-examination to inquire into the cause of the injury, to show, if it were so, that the injury was not the result of the rencounter with the deceased and his sons. The court by its rulings properly limited the inquiry to material facts, and while some of the questions asked by the solicitor were illegal, and properly so held by the court, the character of the questions are not such as would require a reversal of the case on account of prejudice claimed to have been engendered by the method of cross-examination.

[8, 9] Where the conduct of a prosecuting attorney is such, by the manner and method of cross-examination, or otherwise, as to cause the minds of the jury to be dominated in their conclusions, other than from the legal evidence, it is the duty of the trial court to correct this, either at the time, by a proper reprimand of the attorney and instructions to the jury, or, if the injury is such as, in the opinion of the court, the jury cannot continue in an unbiased consideration of the ease, upon motion to discharge the jury and order a mistrial. But these things are largely in the discretion of the trial judge, and in, the absence of a gross misuse of his discretion, in itself evidencing a bias, this court will not interfere or review his rulings. In this case the questions, in themselves, do not indicate bad faith upon the part of the prosecuting attorney, nor do we think the record discloses the defendant’s case was injuriously affected thereby. The rule therefore, as cited from Corpus Juris, p. 893, is not applicable.

[10, 11] The court, over the objection and exception of defendant, permitted the state to prove the general bad character of the defendant at the time of the trial, upon the theory, no doubt, that such testimony was alone for the purpose of impeaching the character of defendant for truth and veracity; he having testified as a witness in the case. When a defendant has testified as a witness, the credibility of his testimony may be impeached, like that of any other witness, by the state showing his general bad character in the neighborhood where he lived, to the time of trial. Charley v. State, 204 Ala. 687, 87 South. 177; Smith v. State, 197 Ala. 193, 199 (8), 72 South. 316. But this character must stand or fall upon facts antedating the act for which the defendant is then on trial. Mitchell v. State, 14 Ala. App. 53, 70 South. 991; Smith v. State, 197 Ala. 193, 198 (7), 72 South. 316. The dictum of the court found in Forman’s Case, 190 Ala. 22, 27 (5), 67 South. 583, seems to be in conflict with the foregoing rule; but, if so, the authorities above cited are later in point of time, and seem to us to have been more thoroughly considered. The objection of the defendant to the question, “Do you know the general character of defendant?” and the motion to exclude the answer, that it was bad, were, on the face of the evidence, properly overruled. But on cross-examination of the witness it being developed that the information on which the opinion as to the general character of the defendant was obtained after the commission of the act for which defendant was being tried, it was error for the court to overrule defendant’s motion to exclude the testimony. Mitchell’s Case, supra.

[12] However, after the evidence was closed, and the solicitor in his opening argument began to comment upon the testimony as to defendant’s bad character, the court, ex mero motu, stopped the argument and said:

“Gentlemen of the jury, the testimony of the witnesses for the state relative to the bad character of the defendant is excluded, and not to be considered by you in the case one way or the other; also any statement made by counsel with reference to the character of the defendant in his argument is > excluded, and not to be considered by you, as well as the testimony of the witnesses with reference to the character of the defendant.”-

This was a correction by the court of the error it had heretofore made, and the action of the court in correcting the error was sufficient to eradicate the effect of the testimony, and the argument based thereon, so as not to injuriously affect the defendant’s case. Hill v. State, 194 Ala. 11, 69 South. 941, 2 A. B. R. 509; Maryland Gas Co. v. McCallum, 200 Ala. 154, 75 South. 902; Watson v. Adams, 187 Ala. 490, 65 South. 528, Ann. Cas. 1916E, 565; Brand v. State, 13 Ala. App. 390, 69 South. 379; 13 Michie’s Digest, 200, § 1053 (1).

[13] In the course of his closing argument to the jury, the solicitor said:

“In reaching your verdict you should consider the widow of George Black and his orphan children.”

The bill of exceptions recites:

“The defendant then and there objected to the statement of the solicitor,” etc.

But no motion was made to exclude the remark. An isolated remark, such as the above, made in the course of an argument in a murder case, where the widow and children of the .deceased had testified, without more, does not show such an impassioned appeal to the prejudice of the jury as to constitute reversible error. Besides, no motion was made to exclude the remark of the solicitor, and in the case of Birmingham Ry., L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 South. 80, Ann. Cas. 1916A, 543, and reaf *434 firmed in Sharp v. State, 193 Ala. 22, 69 South. 122, the court held:

“The effect of our decisions is that a mere objection to already spoken words does not reach the evil aimed at, and that the court must be appealed to to exclude them from the consideration of the jury, failing which there is nothing presented for review by an exception.”

Moreover, the remark does not come with-in the rule laid down in Gardner’s Case, 17 Ala. App. 589, 87 South. 885; Bridgeforth v. State, 16 Ala. App. 584, 80 South. 158.

[14] Charge 10 submits to the jury as a question of law as to what it takes to constitute self-defense, and for this reason is bad.

[15] Charge 13 presupposes the defendant was a reasonable man. The correct rule defining self-defense had already been given by the court in its oral charge and in written charges 5, 11, and 12, given at the request of defendant.

[16] Charge 15 is not insisted on, and its refusal is so apparently free from error as not to require comment.

As has been already shown, supra, no exception having been reserved to the action of the court in overruling the motion for a new trial, we are without power to consider it.

We find no error in the record, and' the judgment is affirmed.

Affirmed.

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