[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 123 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Frank Allsup, alias, was convicted of murder in the second degree, and he appeals. Affirmed. (1-4) The defendant was indicted for killing Less Rape, the indictment charging murder in the first degree, and was convicted of murder in the second degree and sentenced for a term of ten years. The evidence shows that, at the same time and in the same difficulty that Rape was shot and killed, the defendant also shot and mortally wounded one Clay, who died from the wounds inflicted upon him the following day. The state's evidence shows that at the time of the shooting the state's witness John Davis was present and witnessed the difficulty between defendant Allsup and Clay, and that within five minutes after the shooting the defendant came up to where the witness was standing, which was within 30 yards of the place of the difficulty, and witness said: "Frank, you have played h__________l. You have killed both of those boys" — and defendant said: "I do not give a d__________n. Let them die." While the defendant's declaration *Page 124 was not a part of the res gestæ it was admissible as a quasi confession or declaration against interest, and was shown to have been prima facie voluntary. The defendant at the time was under no sort of constraint, and was not in the presence of a person in authority; and his statement tended to illustrate and give color to his conduct. — Stone v. State, 105 Ala. 60,17 So. 114; Poe v. State, 155 Ala. 31, 46 So. 521. The rule now is: "While, to authorize this kind of declarations as evidence against a party in a criminal prosecution, it is the duty of the trial court to ascertain that they were freely and voluntarily made, still, on appeal, it will be presumed that the trial court properly performed this duty before they were admitted in evidence, unless the record affirmatively shows that the court did not do so." — Whatley v. State, 144 Ala. 68,39 So. 1014.
Otherwise stated, the burden is on the state, when offering the evidence in the trial court, to show that the confession is voluntary and admissible; and on appeal the burden is on the defendant to affirmatively show that the confession was received in evidence without showing that it was voluntary.
(5) Evidence as to the particulars of the difficulty between the defendant and deceased at Bass' house some hours before the difficulty was not admissible, and all such testimony was properly rejected on the objection of the solicitor. — EllaSmith v. State, 197 Ala. 193, 72 So. 316; Jackson v. State,177 Ala. 15, 59 So. 171; Bluett v. State, 151 Ala. 41,44 So. 84; Robinson v. State, 155 Ala. 67, 45 So. 916.
(6) The fact that the witness Davis and some of his friends were drinking during the morning before the difficulty over at the house of Bass was not material to the case on trial, and the court properly sustained the solicitor's objections to such questions.
(7) The evidence as to the location of the body of Rape when Vickery and the others reached the scene of the killing, and that Vickery and Edmonds assisted in moving it, and its condition at that time, was relevant in connection with the testimony of Vickery and Edmonds as to the map of the grounds where the killing occurred, as it tended to show the knowledge of the witness as to the situation of the deceased at the time he was shot.
(8) The witness Gambill testified that he took a written statement under oath from the witness Davis with reference to *Page 125 the killing on the next Sunday after the killing; that the statement was written as Davis recited the facts, and read to him after it was completed, and he signed it. On this showing, the paper was well within the rule authorizing the witness to refer to a memorandum or writing for the purpose of refreshing his recollection. — Hitt Lbr. Co. v. McCormack, 13 Ala. App. 453,68 So. 696; B. R. L. P. Co. v. Seaborn, 168 Ala. 658,53 So. 243.
(9, 10) Yet, the paper itself was offered by the defendant and admitted in evidence as evidence of what Davis stated, and injury from the ruling of the court denying the witness the right to refer to the paper and refresh his recollection was thereby averted. The only purpose of the questions eliciting testimony as to the custody of the written statement after it was made, and previous to the trial, was to lay a predicate for the admission of the paper in evidence; and, the paper having been allowed in evidence, no injury from the ruling of the court denying such questions is shown.
(11) While the accused may offer the dying declaration as exculpatory evidence where the death of the declarant is the subject of the charge, the dying declaration of another, though killed by the accused in the same difficulty, is not admissible. — Moore v. State, 12 Ala. 764, 46 Am. Dec. 276;Johnson v. State, 47 Ala. 9; 21 Cyc. 981 [VIII, C, 8, b, (1)].
(12) The ruling of the court allowing the state on cross-examination of the witness Kennedy to show that witness and deceased on the day of the killing had quarreled or had a difficulty was free from error. This course of cross-examination was permissible as tending to show bias on the part of the witness. — Cox v. State, 162 Ala. 66,50 So. 398; Underhill, Crim. Ev. § 248; McSwean v. State,10 Ala. App. 163, 64 So. 543.
(13) The witness Marvin Bass, offered by the defendant, was allowed to testify that Rape stayed all night at his house the night before the killing the next day, that he left there about 12 o'clock, and was drinking at that time, and that Charley Clay was also drinking. How these parties had manifested their intoxicated condition previous to that time during the morning was not material, and the objection to the question eliciting such testimony was properly sustained.
(14) After the testimony of the witness Marvin Bass, to the effect that witness and deceased, after leaving the station heard *Page 126 some shooting, and deceased said, " 'That is Frank Allsup,' and took out a gun and shot twice," was excluded on motion of the solicitor, on further examination of the witness this testimony was repeated and not excluded; and, if it was erroneously excluded in the first instance, the error was cured by the subsequent admission of the testimony.
(15) It is always permissible to show that a witness has been convicted of an offense involving moral turpitude, as affecting his credibility; and, under this rule, it was permissible for the state to show on cross-examination that the witness Bass had been convicted of grand larceny. — Code 1907, §§ 4008, 4009.
(16) The scope of the cross-examination of witnesses as to irrelevant matters to test the accuracy of their testimony or show bias is a matter largely within the enlightened discretion of the trial court, and no abuse of this discretion was shown in the cross-examination of the witness Burnett. — Cox v.State, supra.
We have examined the numerous rulings of the court on questions of evidence not hereinabove noticed, and find no error therein.
(17) Charge B was the affirmative charge for the defendant, and was properly refused.
Charge 6 assumes that the evidence showed without dispute that defendant was in imminent peril of his life, or of serious bodily harm, at the time he fired on the deceased, and was properly refused.
There is no error in the record, and the judgment is affirmed.
Affirmed.