Appellant, tried under an indictment charging him with the offense of murder in the first degree, was convicted of the offense of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for the term of ten years.
It was admitted that he shot with a shotgun — which we know to be a deadly weapon — and killed, one Lawrence Rogers. In view of this, we quote and adopt, as being in all respects applicable here, the portion of our opinion in the case of Coates v. State, 29 Ala. App. 616, 199 So. 830, as follows, to-wit:
"As we said in the opinion in the case of Grays v. State,28 Ala. App. 394, 185 So. 191, we repeat, here: 'The evidence in this case is, without dispute, that the homicide was committed by the use of a deadly weapon. Where such is the case, the proof of the use of a deadly weapon raises the presumption of malice, and throws upon the defendant the burden of repelling the presumption, unless the evidence which proves the killing shows, also, that it was done without malice.'
"Or, as the Supreme Court said in the case of Cooley v. State, 233 Ala. 407, 171 So. 725, 727: 'Defendant's testimony admits an intentional killing with a deadly weapon. The burden was then upon him to prove * * * self-defense * * *. And, though the evidence of defendant may have been without dispute, its credibility was for the jury * * *. They were not bound to accept it as true * * *. Indeed, they might well have rejected it in their discretion. Since they did so, their verdict was well supported.'
"The above quotations, especially the one from Cooley v. State, which controls us (Code 1923, Sec. 7318 [now Code 1940, Title 13, Section 95]), seem conclusive of the [perhaps] principal question argued here by appellant's distinguished counsel as a reason for the reversal of the judgment of conviction."
A fortiori would the holding in the above quotations be true where, as here, defendant's testimony is stoutly and squarely disputed at every material point. And this disposes of some twenty-two pages, of the more than thirty-six, of appellant's able counsel's meticulously — well nigh tediously — prepared brief, filed here on this appeal. Both the general affirmative charge requested by appellant, and the motion to set aside the verdict on the ground it was opposed to the great weight of the evidence, were refused and denied without error.
But there are other matters we will notice, briefly.
As appellant's counsel writes: "The contention of the State was that the deceased, Lawrence Rogers, and his brother, James Rogers, passed the home of appellant's father after dark on the night of April 12th, 1944, going to a store about one-fourth of a mile beyond to get some tobacco; that the road they were travelling was close to the Stallings' home; that as they were passing by, Willie Stallings, appellant's father, hailed them and asked what they were doing cursing out there and that James Rogers replied, 'ain't nobody cursing.' After making this reply James Rogers testified that he and his brother, Lawrence, went on their way along the road toward the store; that after they had gone about sixty yards appellant's father called to them to wait a minute that he wanted to see if they had any liquor on them; that they kept on walking and then the gun fired and Lawrence Rogers, brother of James Rogers, fell; and that when he fell James Rogers turned around and faced appellant and his father, and the father said 'Guy I told you not to do that.' "
Appellant's counsel further writes: "Appellant's defense was that at the time of the difficulty the deceased made a felonious assault upon his father with an open knife; *Page 4 and that he and his father were both free from fault in bringing on the difficulty and that he shot the deceased to save his father from death or grievous bodily harm."
It thus appears that by the statement of appellant's own distinguished counsel, the case was one peculiarly for the jury.
Our Supreme Court has said: "The general rule has been declared that the qualifications of a witness to testify as an expert is a matter largely within the discretion of the court trying the case, and the appellate court will not reverse its rulings unless there has been an abuse of that discretion; and Mr. Wigmore states that the exercise of the discretion in this particular should not be reviewed at all." Stewart v. Sloss-Sheffield Steel Iron Co., 170 Ala. 544, 54 So. 48, 50, Ann.Cas. 1912D, 815.
Since the above is true (Code 1940, Title 13, Section 95), it would follow that it was likewise in the discretion of the trial court to allow the questions put to the witness Dr. C. J. Rehling seeking to further develop his qualifications as an expert witness. We observe no abuse of that discretion such as would call for any revisory action on our part. And appellant's objections to such questions were overruled without error.
We have carefully examined the rulings underlying the other exceptions reserved on the taking of testimony, but do not deem it worth while to discuss them separately. Able counsel here representing appellant argues for error, in an appealing manner. But is unable to cite any holding by this or the Supreme Court that, to our minds, sustains his argument.
As an illustrative instance he complains bitterly that it was error to refuse to allow appellant to tell what he said to his father, when he came into the father's house shortly before both he and his father went out into the highway, and down the highway some distance, to where the shooting occurred.
Manifestly, without being informed of what it was appellant proposed to tell, the court was authorized to sustain the objection to the question. It might have been something having no bearing whatever upon the difficulty then pending or impending between appellant and deceased. And, equally as clearly, we are unable to adjudge the trial court in error because of its said ruling.
As to every other ruling, on the taking of testimony, underlying an exception reserved, we state that, after a careful study, we are of the opinion and hold that it was either correct or innocuous.
Appellant's able counsel urges upon us the novel theory that "although the difficulty was in the road (public road), the defendant (appellant) and his father were on his father's premises," — this because, as he argues, "the father owned the lands on both sides of the road and the difficulty occurred only about sixty-five yards from the father's front gate." And that hence his written requested charge 8 (which the reporter will set out in the report of this case) was erroneously refused. But we do not agree.
Neither this written charge 8, nor any other of the written, requested, and refused, charges were due to be given to the jury.
The argument of the Solicitor made the subject of an exception did not, in our opinion, transgress the rules which prevail. Cross v. State, 68 Ala. 476.
We have given the most earnest study to the record — aided thereto by the detailed and voluminous brief filed here on behalf of appellant. The argument contained therein, it would seem, might have won an acquittal before the jury.
But, as pointed out in similar detail in the brief filed here on behalf of the State, there is nothing for this court to do but affirm the judgment of conviction. And it is so ordered.
Affirmed.
On Rehearing.