Namie v. State

Under an indictment which charged murder in the first degree, the defendant was convicted of manslaughter in the second degree.

There was no error in sustaining the state's objection to the question propounded by the defendant to the witness Phil Williams, on cross-examination, "When you saw him [deceased] there, where he was shot, did he say in substance, 'The sucker beat me to it'?" There is nothing to show that this statement, if made, was so close in point of time as for it to be a part of the res gestæ.

This is also true of the statement sought to be proven by the defendant's witness Kilgore, when he was asked, "Did the *Page 459 defendant ask for any officers to go back and search for the negro?" Aside from its immateriality, it appears that this was some time after the shooting.

There were many written charges refused to the defendant, which charges dwelt with the law governing one's rights and duties, when making an arrest of one who has committed a felony.

The defendant's testimony shows that, on the night of the killing, deceased came to his store, and, after purchasing some articles, he presented defendant a check for $25, and that, after deducting the amount of the purchase, he (defendant) paid the remainder over to deceased; that shortly thereafter defendant found that the check was issued originally for $4.10, and that deceased had raised it to $25. Defendant then went in search of the deceased, and found him at the depot in Decatur, where the killing took place. Assuming, then, that there was some testimony that the defendant was attempting to arrest the deceased for the commission of this felony at the time deceased was shot, although the defendant testified, "I shot the man in self-protection, in self-defense, and not to get my money back, and I did not shoot him to keep him from running off and getting away from me," the defendant cannot complain at the refusal to give written charges refused to him declaring the law on this phase of the testimony, for the reason that the oral charge of the court fairly, clearly, and correctly stated the law in this respect. We may state that the testimony for the state tended to show a most cruel and heartless murder.

Refused charges K and 35 are abstract. Refused charges, 32, 2, 49, 6, 15, 39, 27, 26, 17, 25, 12, and 11, when they correctly state the law, are fairly and substantially covered by the court's oral charge.

Refused charge 7 is argumentative.

There is no error in the record, and the judgment is affirmed.

Affirmed.