Wingate v. State, 55 So. 953

55 So. 953 | Ala. Ct. App. | 1911

DE GHAFFENNIED, J.

The defendant was indicted for murder in the first degree. He was tried in the city court of Mobile on a plea of not guilty to the indictment, was convicted of manslaughter in the first degree, and sentenced to the penitentiary for a period of five years.

The theory of the state was that the defendant and deceased were quarreling about a woman, Mary Green, and that defendant was cursing deceased about her; that the woman heard the quarrel and called deceased, who thereupon abandoned the quarrel, and, leaving defendant, went to the house of the woman, and sat by her on her front porch; that shortly after this the defendant, without being requested to do so, came in the direction of the woman’s house either with the intention of provoking a difficulty with deceased, or prepared, at least to resist any attack, deadly or otherwise, which the deceased might make on him; that, before the defendant reached the gate leading into the house of the woman, the deceased armed himself with a deadly weapon and made an attack on defendant; that defendant willingly entered into the difficulty and in the difficulty killed deceased.

The defendant’s theory, on the other hand, was that there was in fact no quarrel, but that, if there was, the first quarrel had been abandoned in good faith by the defendant, and that while he, without intending thereby to provoke a difficulty, was approaching Mary Green’s house, he was unexpectedly and without fault on his part, violently assaulted by deceased with a deadly weapon ; that, he had no reasonable mode of escape; and that he struck the mortal .blow when in imminent actual danger from deceased to save his own life or to save himself from great bodily harm.

There was some evidence in the case tending to uphold both contentions.

All of the evidence tended to show that the homicide occurred at an early hour in the night. The witness Mary Green, about whom the trouble appears to have arisen, says it Avas after dark, between 7 and 8 o’clock, and, while she testified that it was a moonlight night and that the moon was shining Avhen the homicide occurred, she stated that just after the homicide the defendant got a light out of her house and went out to the gate looking for his hat, and finally found it. The defendant testified that it Avas dark when the killing occurred, and also testifies that he did get a light and by its aid found his' hat just after the homicide. The defendant’s counsel while the defendant was on the stand asked him what time it was when the killing occurred. The-state objected, the court sustained the objection, and the -defendant excepted. As we read the evidence, we do not think that the court committed an error in this ruling. The testimony all showed, as above stated, that the homicide was committed in the early part of the night, “after dark,” and it was immaterial as to what exact time it did occur. As we understand counsel for defendant, he desired to contradict Mary Green on this point by the defendant; but a contradiction on an immaterial point does not affect the testimony of a witness. The court therefore committed no error which was of injury to defendant in refusing to allow the defendant- to answer the question.—Murphy v. State, 118 Ala. 142, 23 South. 719.

The court was not guilty of error in allowing the state to prove by the defendant, for the purpose of casting discredit on his testimony on his cross-examination, that he had been convicted of a felony.—Code, § 4009; Wells v. State, 131 Ala. 48, 31 South. 572; Deal v. State, 136 Ala. 52, 34 South. 23.

The court committed no error in charging the jury, at the written request of the state, that, “if the defendant willingly fought with deceased, he cannot claim self-defense.” One of the important questions under the evidence was whether the defendant did not himself invite the difficulty which resulted in the homicide, and did not take advantage of it to inflict the wound on deceased which resulted in his -death. Referable to all the evidence in this case, the charge was proper.—Williams v. State, 83 Ala. 16, 3 South. 616; Gilmore v. State, 126 Ala. 20, 28 South. 595; Boulden v. State, 102 Ala. 78, 15 South. 341.

Under the authorities above cited, the second charge given to the jury at request of the state was manifestly proper.—Rose v. State, 144 Ala. 114, 42 South. 21. Even if this charge was error, it was error without injury to the defendant.

The defendant was convicted of manslaughter in the first degree, and the charge above referred to defines murder.—Winter v. State, 123 Ala. 1, 26 South. 949.

Charge No. 3, given at the request of the state, belongs to that class of charges which a court may or may not in its discretion give. The court committed no error in giving the charge to the jury.—Dryman v. State, 102 Ala. 130, 133, 135, 15 South. 133; Allen v. State, 87 Ala. 107, 109, 6 South. 370; Wells v. State, 131 Ala. 48, 31 South. 572; McGee v. State, 117 Ala. 229, 231, 23 South. 797; Lewis v. State, 88 Ala. 11, 13, 6 South. 755; Smith v. State, 107 Ala. 139 (chg. 7, p. 142), 18 South. 306; Smith v. State, 118 Ala. 117 (chg. 6, p. 119) 121, 24 South. 55; Miller v. State, 107 Ala. 40 (chg. 9, p. 46) 58, 11 South. 37; Willems v. State, 98 Ala. 1 (chg. 10, p. 5) 8, 13 South. 322; Allen v. State, 87 Ala. 107, 109, 6 South. 370; Walker v. State, 89 Ala. 79, 81, 8 South. 153; Lang v. State, 84 Ala. 1, 5, 4 South. 193, 5 Am. St. Rep. 324; McKleroy v. State, 77 Ala. 95, 98.

Charge No. 1, asked by the defendant, was misleading, and was properly refused.

Charges 2 and 6 singled out a part of the testimony in the case and belong to that class of charges which the court may or may not in its discretion give. Its refusal to give the charges was not error.—Stone v. State, 105 Ala. 65, 17 South. 114.

Charge 4, asked by the defendant, was properly refused, because, while it is predicated upon the abandonment by the defendant of the difficulty in good faith, it ignores that part of the evidence tending to show that the defendant was not free from fault in the renewal of the difficulty, and that he fought willingly.—Rose v. State, supra.

The evidence for the state in this case tends to show that, while the quarrel between the defendant and the deceased had been abandoned, the defendant afterAvards, by proceeding to the house of Mary Green where the deceased was, did an act which was reasonably calculated under all the circumstances to bring about a renewal of the trouble, and the above charge ignores this phase of the testimony.

Charge 5, asked by the defendant, was bad because it ignores that part of the evidence which tends to show that the deceased fought willingly and ignored the doctrine of retreat. The same criticism is applicable to charge 7.

We are therefore of the opinion that no reversible error was committed by the primary court in this case, and the judgment of the court below is affirmed.

Affirmed.