Appellant was jointly indicted with his father for the murder of one Ab. Giles. There was a severance. Defendant did not deny the shooting, but pleaded self-defense, and appellant's trial resulted in a conviction of murder in the second degree, from which this appeal is prosecuted.
The defendant, with his father, and members of their respective families, were touring in two automobiles from Atlanta, Ga., to a point in Mississippi, and while upon a narrow hill on a public road in Cleburne county met the deceased, there being a collision between the car of the deceased and that of the defendant's father. The parties were strangers. After the passing of a few words a difficulty ensued, in which the deceased received two pistol shot wounds, one in the neck and the other in the chest, either of which, according to the evidence of the physician, was sufficient to produce death.
The difficulty occurred about 2:30 o'clock in the afternoon of Sunday, June 17, 1923. He received the attention of a physician about 4 o'clock the same afternoon, and died at 10 o'clock that night. The attending physician testified as to these mortal wounds, and that the deceased told him he was going to die. The physician also informed the deceased of his impending death. The court was fully justified in the light of this preliminary proof in admitting the evidence of the physician as to the dying declarations of the deceased. Gerald v. State, 128 Ala. 6, 29 So. 614; Patterson v. State,171 Ala. 2, 54 So. 696. The dying declarations as testified to by the physician consist of a narrative of the entire difficulty from the time the deceased first met the defendant and his father in the road until after the shooting, all of which was one continuous transaction, and consequently formed a part of the res gestæ. B'ham, etc., Co. v. Tadrick, 205 Ala. 540,88 So. 858, and authorities there cited. This observation also applies to the objection interposed to the testimony of Sam Giles, the 10 year old son of the deceased.
There was no error in overruling the objection to that part of the dying statement containing the words "abusing him." While we are inclined to the view that all the circumstances clearly show these words had reference only to verbal abuse, and was merely a statement of a collective fact, yet the form of objection renders a consideration of that question unnecessary for the reason the objection specified also included other portions of the statements which were clearly proper, and no separate objection interposed to this particular language.
One Richardson testified on direct-examination for the state that he lived about a quarter of a mile from the place where the shooting occurred, and went to the place, and that he talked with the defendant, who admitted he had shot the deceased. This witness also said that, according to his recollection, the defendant stated that he had taken the pistol from the deceased and shot him with his own gun. The fact that upon cross-examination, upon being asked in detail all that was said, the witness omitted this latter statement, did not render inadmissible the testimony to that effect, given by him on his direct examination; this was a matter affecting the credibility of the witness, and not the admissibility of the testimony.
The witness Murphy was permitted, over defendant's objection, to testify to a statement which he heard the father of defendant make in Heflin the afternoon of the killing, which was at variance with some material features of defendant's father's testimony. A predicate therefor had been sufficiently laid when the defendant's father was on the stand, and we see no error in overruling the objection to this evidence. The testimony of witness Hendrix for the state was in rebuttal, and this ground of objection is without merit.
Given charge 49 sufficiently instructed the jury as to the matter sought to be embraced in refused charges 60 and 61.
Refused charges 25 and 26 were also argumentative, and properly refused.
Refused charge 21 pretermits a consideration of freedom from fault on the part of the defendant, and there was no error in its refusal. These are the only refused charges which are given attention in brief of counsel for appellant. There are others which we have carefully examined, but as to these it will suffice to say they were either defective, and properly refused upon that ground, or, in any event, fully covered both by the oral charge and the charges given at the request of the defendant, which consisted of quite a number. *Page 558 Indeed, the oral charge of the court appears to cover every phase of the law bearing upon the issues in the case, which oral charge is supplemented, as previously stated, by a large number of given charges.
The defendant's motion for a new trial was overruled. The evidence was in sharp conflict; that for the state sufficient to sustain the charge of murder, and that for the defendant justifying him upon the plea of self-defense. The grounds of the motion for a new trial to the effect that the verdict of the jury was contrary to the evidence, and there was not sufficient evidence to justify a verdict of murder in the second degree, need no special consideration, as also the fourth ground, that the punishment was excessive. Whatever may be said as to this ground, we think it clear the question there sought to be presented could not be so presented for the first time on a motion for new trial. Wadsworth v. State, 18 Ala. App. 352,92 So. 245. It is vigorously insisted, however, that the motion for a new trial should have been granted upon the sixth ground, in proof of which affidavits were offered. This ground of the motion is based upon the theory that after the conclusion of the argument in the case, about 5:30 in the afternoon, and after the court had announced an adjournment until 7:30 that night, the widow of the deceased walked to the table immediately in front of the jury stand, and in the presence of the jury, and upon which table lay the pistol of the deceased, and "staged a weeping demonstration," crying and sobbing in the presence of the jury. There were affidavits offered by the defendant to the effect that special counsel assisting in the prosecution aided and abetted in this demonstration by going to the widow, taking her by the arm, and leading her to the table. This is denied by special counsel, the widow, and one Ed. Giles in counter affidavits, and this denial is supported by the affidavit of eight of the jurors. It would seem, therefore, that the preponderance of the evidence sustains the contention that special counsel did not so aid and abet in this demonstration.
Upon the attention of the court being directed to this occurrence the trial judge immediately ordered the sheriff to escort the widow from the courtroom. There was no further or other request made of the trial judge. The widow of the deceased was only a witness and an interested spectator. All that occurred took place in the presence of the defendant and his counsel. There was no request for a delay or postponement of the trial or discharge of the jury, or that the court should give any instructions admonishing them against permitting themselves to be affected by any such demonstration. Having full knowledge and remaining silent, we are of the opinion the general rule applies to the defendant to the effect that he would have no right to thus speculate on the chance of a favorable verdict, and afterwards complain thereof as error on motion for a new trial. Greer v. Malone-Beall Co., 196 Ala. 401,72 So. 28; N.Y. Life Ins. Co v. Turner, 210 Ala. 197,97 So. 687; 12 Cyc. 718.
Moreover, we do not entertain the view that such demonstration was of so highly a prejudicial character as to be incapable of eradicating the effect thereof from the mind of the jury by proper admonition and instructions from the trial court. B. R., L. P. Co. v. Gonzalas, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; B. R., L. P. Co. v. Drennen,175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037; Davis v. State,209 Ala. 409, 96 So. 187; Leith v. State, 206 Ala. 439,90 So. 687; Moulton v. State, 199 Ala. 411, 74 So. 454; State v. Gray, 172 Mo. 430, 72 S.W. 698; Clements v. State,123 Ga. 547, 51 S.E. 595; Graves v. Rivers, 3 Ga. App. 510,60 S.E. 274.
The trial court saw and heard all that was done on this occasion, and the court has reached the conclusion that no reversible error appears in the action of the trial court in overruling the motion for a new trial.
We have here considered the questions presented in brief of counsel for appellant, but, mindful of our duty in cases of this character, have also considered the few remaining questions not treated by counsel, and not herein discussed. It will be sufficient to say that in them we find no error, and nothing of such importance as to call for separate treatment.
Finding no error in the record, the judgment of conviction will be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.