Appellant was tried under an indictment for murder in the first degree, convicted of manslaughter in the first degree, and given a sentence to serve 10 years' imprisonment in the penitentiary.
It appears that Boyd Wright Stokes, the man who was killed by appellant, had been married to, and separated from, Clara Stokes, who was the sister of appellant. Clara had made her home, from the time of her separation from her husband, with the appellant, though she was never divorced from the deceased. Upon the occasion of the fatal difficulty the deceased, at Clara Stokes' invitation or request, was keeping a tryst with her, in the quiet hours of the night, a considerable distance from appellant's home, and, as the evidence indicates, in a place not upon appellant's premises. In the process or manner of keeping this "tryst" it appears, both from the circumstances and according to appellant's best judgment, that Clara and the deceased, in contravention of no law that we are acquainted with, were at the very time of appellant's purposeful, or at least intentional, uninvited, unwanted, and unwarranted approach upon them, engaged in refreshing themselves by having what we will call a portion, or session, or time, of "conjugal bliss."
So much of the circumstances surrounding the parties at the time of the shooting of deceased by appellant are set out in order to show the reason for our conclusion that there was no error in giving at the request of the state written charge 2. Whether the criticism of said charge made by appellant's able counsel is justified on strictly technical grounds or not is immaterial, where it appears, as here, by appellant's own testimony, that he was not free from fault in bringing on the fatal difficulty.
We think a sufficient predicate was laid for the admission of testimony as to the "dying declarations" of deceased. Justice v. State, 99 Ala. 180, 13 So. 658.
The exceptions reserved to remarks made by the court to counsel in the cause, which remarks the jury were specifically instructed they were not to consider, cannot avail. In the first place the substance of said remarks was, in our opinion, legally justified. But whether so or not, the remarks were not of a nature the effect of which, upon the jury hearing them, could not be, and was not, fully eradicated by the instruction of the court to the jury not to consider them.
The exceptions reserved on the taking of testimony have each been examined. In none of the rulings underlying same is there involved other than the simplest principle of the law of evidence. Nowhere in said rulings do we find the trial court to have committed prejudicial error.
Written charges 1 and 2 were properly given at the state's request.
The written charges refused to appellant have each been examined. They were each either incorrect, abstract, improper, or fully covered by and included in the trial court's oral charge, in connection with the written charges given at appellant's request.
Diligent search of the record fails to reveal any prejudicial error committed in the trial of the cause, and the judgment of conviction is affirmed.
Affirmed. *Page 436
On Rehearing.