Welsh v. State

PELHAM, J.

The state was permitted to prove, against the defendant’s objection, by its witness Jauey Sherman, that, a few minutes before the fatal difficulty in which the defendant hilled the deceased, the witness saw the defendant’s wife come out of the defendant’s yard with'him into the road where the deceased was, with whom the defendant had had a difficulty a short time before, and that the defendant’s wife was begging him to go back into the yard. ■ There was no error in overruling defendant’s objection to this evidence or the question eliciting it. It was shown to have occurred at a point of time just immediately preceding the killing and just subsequent to a prior difficulty with the deceased, and was «admissible as tending to shed light on the conduct and demeanor of the defendant at or about the time of the homicide as properly affecting the issue as to who was the aggressor and who was at fault in bringing on the difficulty.

One who is the aggressor or at fault in bringing on a difficulty with another that results in his slaying his adversary, even in his own home, cannot thereafter claim self-defense and set up that he was under no duty to retreat. — Maxwell v. State, 129 Ala. 48, 57, 29 South. 981, and authorities there cited.

It is not shown by the recitals of the bill of exceptions that the court was in error in refusing against the objection of state’s counsel, to allow the defendant to testify to an exculpatory statement made by the deceased to the defendant “just after the shooting,” when the deceased had fallen to the ground and defendant had gone out to the place where he was, after the shooting was a thing of the past. The bill of exceptions does not purport to set out all of the evidence, and from the meager statements set out it is not made to appear that the statement was a part of the res gestae. — Lundsford v. State, 2 Ala. App. 38, 56 South. 89; Powell v. State, 7 Ala. App. 17, 60 South. 967; Simon v. State, 61 South. 801; Livingston v. State, 7 Ala. App. 48, 61 South. 54.

Besides, the court could not he put in error for sustaining an objection to the question set out in the hill of exceptions, for the facts which counsel stated that he expected to elicit as an answer Avould not have been responsive to the question the objection to which was sustained. The question to the defendant Avas what he (defendant) did at the time, while the proof offered to he made as an answer to the question, according to the statement of defendant’s counsel, Avas Avhat the deceased said to the defendant at that time.

We find no error in the record.

Affirmed.