This is the second appeal in this case. Suttle v. State,18 Ala. App. 411, 92 So. 531.
Under an indictment charging the defendant with the offense of murder in the first degree he was convicted of murder in the second degree, and was duly sentenced to twenty years' imprisonment in the penitentiary. It is here insisted that there is a variance between the allegations in the indictment and the proof adduced upon this trial, in that the indictment gives the name of the deceased as "Alvary Fikes, alias Alvary Fikes," and it is contended that the proof shows the name of the deceased to be "Alberry Fikes."
We are of the opinion that appellant's counsel are correct in their insistence that these names are not idem sonans; therefore, it the evidence was without conflict on the question involved, that is, the Christian name of deceased, and if it had been shown without dispute that his name was "Alberry," and not Arvary or Alvary, as the indictment avers, a material variance we think would have been shown; one possibly fatal in its effect. But there is a conflict in the testimony as to the name of deceased, there being some evidence which tended to show that his name was "Alvary," as averred in the indictment; notably the testimony, by deposition, of Luke Hartley, a witness for defendant. It therefore became a question for the jury, and the general charge requested in this connection was properly refused; the general rule being that the general or affirmative charge should never be given when there is any evidence, however weak and inconclusive it may be, tending to make a case against the party who asks it. Pellum v. State,89 Ala. 28, 8 So. 83; 17 A.L.R. p. 929, note. The fact that this conflicting testimony was brought out by the defendant, and not by the state, cannot avail the defendant, as the jury is required in its deliberations to consider the whole evidence and to predicate its findings accordingly.
Charge 3 refused to defendant has been approved by the Supreme Court in Bowen v. State, 140 Ala. 65, 37 So. 233, and Pickens v. State, 115 Ala. 42, 22 So. 551, and in said cases the refusal of this identical charge has been held error. We must so hold here, as the charge is not abstract, and it does not appear that the principles of law contained in this charge were substantially or fairly given to the jury in the court's general charge or in the charges given at the request of defendant. Charges 3 here is an exact copy of the fifth charge in Bowen's Case, supra, and, Mr. Justice Sharpe for the court, in discussing this charge, said:
"The test of the sufficiency of circumstantial evidence for conviction as laid down in the fifth charge is in substance the same as that which in Pickett v. State, 115 Ala. 42, 50, was charge there was error for which the judgment must be reversed."
And in Pickens Case, supra, Brickell, C.J., for the court, said:
"The test of the sufficiency of circumstantial evidence is, whether the circumstances as proved, produce a moral conviction to the exclusion to the exclusion of all reasonable doubt of the guilt of the accused — whether they are incapable of explanation upon any reasonable hypothesis consistent with his innocence. * * *"
And, further:
"The humane provision of the law is, that upon circumstantial evidence there should not be a conviction unless to a moral certainty, it excludes every other reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused is not shown by that full measure of proof the law requires."
Refused charges 2, 6, and 7 single out a part of the evidence, and were for this reason properly refused. Refused charge 7 was also argumentative.
The court properly refused charges 4 and 9, for no duty rests upon the court to give a charge asserting that there is no evidence of a specified fact or state of facts. Thrasher v. State, 168 Ala. 130, 53 So. 256.
Charges 8 is argumentative. There was some conflict in the testimony; hence the refusal of charge 5 was proper.
The court committed no error in allowing the state to introduce in evidence the pistols which had been testified to by several witnesses, and also the clothing identified as having been worn by the deceased at the time of the killing. 1 Mayfield's Dig. pp. 320 et seq.
The defendant offered in evidence the depositions of Luke Hartley, a convict confined in the state penitentiary, but upon motion of the state the court excluded certain portions of the deposition, to which action of the court defendant excepted. The *Page 201 court properly excluded the following potions or sentences contained in said depositions, to wit: "Alvary Fikes started it." I started as soon as Henry Suttle left me to go to Mr. Andrew Fair's store." "And I thought I was killing him," "Mr. Fair told me Avery was shot and killed, and for me not to leave." "Thought he kept running." "I hope he will be acquitted for killing Alvary Fikes." Each of the above sentences are clearly illegal and inadmissible. But we are of the opinion that the following two statements contained in the depositions of this witness should not have been excluded: "In presence of several white men Henry Suttle said to me when he came into the restaurant, `You ought to love me the balance of your life, for I saved your life;' " and the further sentence, "Alvary would have cut you to death if I had not pulled him off you." The relevancy of these statements is apparent as being a part of a conversation testified to by the state witnesses. It was also in rebuttal of the testimony of these several state witnesses, and in conflict with their testimony, wherein they had stated that Henry Suttle had stated at this particular item, "You need not worry about the other fellow; I fixed him," coupling the statement with an oath, etc. These statements were not of the res gestae, but were competence for the reasons above stated. Madry's Case, 201 Ala. 512, 78 So. 866.
On cross-examination of the defendant, who testified in his own behalf, the solicitor propounded the following question: "Were you drinking that night?" and over the objection and exception of defendant he was required to answer, which he did by saying, "Yes, sir; I had had a drink." We think this question was objectionable for being too general, and should have been confined to the time of the difficulty. However, we would not predicate reversible error on this ruling, as several witnesses were permitted to testify without objection that the defendant at or about the time or immediately following the difficulty was more or less under the influence of liquor. The condition of the defendant at the time of the alleged commission of the offense is a part of the res gestæ; and, as aptly stated by the Attorney General, the solicitor had the right to have this question answered for the purpose of enabling the jury to determine whether the witness accurately remembered things as they occurred on the night of the homicide. Moreover, the scope of cross-examination of witnesses even as to irrelevant matters to test the accuracy of their testimony or show bias is a matter largely within the discretion of the trial court. Here no abuse of this discretion is shown.
This disposes of every question presented for our consideration on this appeal.
For the errors designated, the judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.