Appellant was convicted of the offense of manslaughter in the first degree, and sentenced to serve imprisonment in the penitentiary for the term of two years.
Upon a former trial, under the same indictment, he was convicted of the offense of murder in the second degree. The judgment of conviction rendered on that trial was reversed by this court. See Huff v. State, 23 Ala. App. 426, 126 So. 417.
We adopt as our own, and as being applicable here, the following language taken from the opinion in the case of Hargrove v. State, 147 Ala. 97, 41 So. 972, 973, 119 Am. St. Rep. 60, 10 Ann. Cas. 1126, to wit: "The [a] question raised is based on the refusal of the court to give the general charge requested in writing to find in favor of the defendant. It has often been ruled by this court that the general affirmative charge cannot be given, when the evidence affords inference adverse to the party requesting the charge. In such a case the question becomes one for determination by the jury. The evidence in the case before us offered inference of the defendant's guilt, and the court, therefore, properly refused the charge."
We discover nothing prejudicial to appellant in the rulings on the admission of testimony as to his being drunk, or drinking, at and before the time of the fatal rencounter. All the testimony as to his having been drunk, etc., earlier in the day, etc., was properly, sufficiently, and satisfactorily "ruled out," and testimony as to his condition, in this regard, at the time and place of the difficulty, was admissible as a part of the res gestæ.
Chief insistence, perhaps, is made that the judgment of conviction should be reversed because of the action of the trial court in overruling appellant's motion for a new trial, as on the ground of newly discovered testimony, etc. The said "newly discovered testimony" was such that it "tended only to discredit the (a) state's witness." Cosby v. State, 202 Ala. 419,80 So. 803.
"Reversible error cannot be predicated of the action of the trial court in overruling a motion for a new trial based upon newly discovered evidence of that character, unless, upon the whole case, it appears to be probable that the new evidence would change the result, should a new trial be granted." Cosby v. State, supra.
We do not find that the new evidence in this case measures up to the rule. We therefore conclude that the trial court committed no error in the action mentioned.
Appellant's able counsel has argued to us, both in brief, and orally, that reversible error was committed by the court, in refusing to reopen the taking of testimony, after the *Page 509 argument of the case, to the jury, had begun, and allow him to offer evidence tending to impeach the testimony of one Cicero Thompson, who, on behalf of the state, had testified to a threat, etc., made by defendant against the life of deceased. But said impeaching testimony was only to the effect that the witness Thompson had been heard to say, after he had given his testimony in the case, in substance or effect, that, "I would not have sworn against Jim (the defendant) like I did if it hadn't been for my mother, she got me to do it."
There was undisputed testimony already before the jury that this witness Thompson was "kind of nutty * * * he is (was) kind of off in the upper story." "Cicero Thompson might tell you one thing and swear another. He might tell you one thing on the outside of the Court House and go inside and swear another thing," etc.
In view of the above undisputed testimony, and, in the face of the statement of appellant's counsel that the jury trying the case "had five or six men on it, that would have made good Probate Judges," by which quaint statement he explained to us that he meant they were men of the very highest type of intelligence, morality, and integrity, we are far from being able to say the trial court abused its discretion in refusing to reopen the taking of testimony and admit that above mentioned. Code 1923, § 9490.
We have carefully examined every exception reserved, or ruling or action made, or taken. The record is regular. Appellant appears to have had a fair trial.
There is nowhere prejudicial error, and the judgment of conviction must be, and is, affirmed.
At least the above was, and is, my opinion, prepared originally for the court.
It now, in view of the majority opinion, prepared and promulgated by BRICKEN, P. J., becomes my reason for dissenting.