Minor v. State

BRICKEN, J.:

The defendant was indicted for murder in the first degree, and was convicted of the offense of manslaughter in the first degree, and sentenced to ten years’ imprisonment in the penitentiary. From the judgment of conviction the present appeal is prosecuted.

(1) The defendant complains that errors prejudicial to him were committed on the trial in rulings of the court on evidence, and the refusal to give certain instructions to the jury requested by him in writing. The first ruling of the court complained of as error was in permitting John Middleton, a witness for the state, against the defendant’s objection, to testify as to the particulars of that part of the difficulty between the deceased and the defendant which took place in Gambill’s saloon, assigning as ground of objection, because not a part of the res gesta?, because illegal, irrelevant, and immaterial, and because remote and disconnected with the encounter which resulted in the killing. There seems to have been no objection as to the testimony of witness Wesley Reeder, who was examined as a witness for the state prior to the introduction of the witness John Middleton, the said witness' Reeder having" testified to substantially the same facts as did the witness John Middleton. Neither was there objection interposed as to the testimony along the same line of witnesses Josh Middleton, John Robertson, Henderson Gipson, and Jack Sherrod. All of these witnesses without seeming material conflict testified to the detailed facts relating to the commencement or the beginning of the difficulty out of which the homicide grew. The testimony is practically without conflict that the defendant and deceased mutually and willingly entered into a fight in Gambill’s bar, and that the fight continued until they were forcibly separated; that deceased left the scene of the difficulty by going out of the back door of the saloon and was almost immediately followed by the defendant; and that the fatal shot was fired, as shown by the testimony, in one to three minutes thereafter. The defendant admits that he fired the shot which killed deceased, and the evidence is without conflict that the bullet entered the forehead of the deceased, striking him right in the center between the eyebrows. . Under these circumstances, it can be clearly seen that the evidence of John Middleton was competent, and the ruling of the court in admitting it free from error. It was competent to show all that transpired at the time of the killing, and which occurred prior thereto leading up to and explanatory of the tragedy. — Way v. State, 155 Ala. 60, 46 South. 273. Acts or declarations are admissible as part of the res gestae if they are substantially contemporaneous with the main fact under consideration and so closely connected with it as to illustrate its character. — Johnson v. State, 94 Ala. 41, 10 South. 667; Fonville v. State, 91 Ala. 42, 8 South. 688. In the case of Stitt v. State, 91 Ala. 10, 8 South. 669, 24 Am. St. Rep. 853, it was held that, where it appears that defendant was knocked down by the deceased, and that defendant ran off and got a pistol and returned in about two to five minutes, and the quarrel was renewed and he shot and killed deceased, that the former difficulty was admissible as res geste. — Stitt v. State, supra; Jordan v. State, 81 Ala. 20, 1 South. 577; Ridgell v. State, 1 Ala. App. 94, 55 South. 327.

(2, 3) Other rulings of the court on the evidence seem to be free from error, or, if error appears, it is not of that character as would probably injuriously affect the substantial rights of the defendant; especially is this true in the light of the testimony of the defendant himself, as well as all of the witnesses examined as to the facts in this case. — Rule 45, Supreme Court Practice (175 Ala. xxi, 61 South, ix). Furthermore, it would appear that if the testimony referred to was objectionable, it would be because of its having been hearsay, and as no objection was interposed upon the ground of it being hearsay testimony, but only a general objection having been made, it would be considered waived; and under the authority of Elmore v. State, 110 Ala. 63, 20 South. 323, it appears that the defendant has failed to make a proper objection to this testimony to make it available on review.

(4, 5) The court properly refused written charge 7, as said charge was substantially covered by charge 1, which was given. It is also argumentative and misleading. — Kirkwood v. State, 8 Ala. App. 102, 62 South. 1011; Hubbard v. State, 10 Ala. App. 47, 64 South. 633; Carwile v. State, 148 Ala. 576, 39 South. 220.

(6) Charge 8 refused has been held bad in Brown v. State, 150 Ala. 25, 43 South. 194.

(7) Charge 9 refused was held to be erroneous in Sykes v. State, 151 Ala. 81, 44 South. 398. However, this charge was substantially covered in given charges 4, B, C, and 19.

(8, 9) Refused charge 10 was properly refused. The burden is upon the state to prove only that the defendant is guilty beyond a reasonable doubt, and is not upon the prosecution from the beginning to the end. But after a consideration of all the evidence in the case, for the defendant might introduce testimony that would supply an element necessary to convict the defendant. The tendency of this charge would be to have the jury ignore any evidence other than that of the state in arriving at the guilt of the defendant. — Davis v. State, 8 Ala. App. 147, 62 South. 1027.

(10) There was no error in refusing charge 11, for the reason that said charge was not predicated upon the evidence in this case. Circumstances not based upon the evidence would not authorize an acquittal, and should not be considered by the jury in its deliberations. — McClain v. State, 182 Ala. 81, 62 South. 241; Pate v. State, 94 Ala. 14, 10 South. 665; Thomas v. State, 106 Ala. 22, 17 South. 460.

(11) Charge 12 was properly refused, as the measure of proof required in all criminal cases is a reasonable doubt.— Green v. State, 168 Ala. 104, 53 South. 284; Kirby v. State, 151 Ala. 66, 44 South. 38.

(12, 13) There was no error in refusing charge 13, in that it treats only one phase of the evidence. It is also incomplete, and fails to state a proposition of law, and the meaning does not follow properly. — Bailey v. State, 168 Ala. 4, 53 South. 296, 390; N. C. & St. L. Ry. v. Blackmon, 7 Ala. App. 535, 61 South. 468; Mitchell v. State, 94 Ala. 68, 10 South. 518.

(14) Refused charge, without number or letter, is bad. This identical charge was condemned in Bailey v. State, 168 Ala. 17, 53 South. 296, 390; Phillips v. State, 162 Ala. 14, 50 South. 194.

The refusal of charge 14 was without error. — Underwood v. State, 179 Ala. 21, 60 South. 842. This charge is in effect substantially given in charges 3, 4, 6, 18, 31, 45, A, and C.

Charges 15 and 28 (which are identical) were properly refused. — Watts v. State, 177 Ala. 24, 59 South. 270; Davis v. State, 8 Ala. App. 147, 62 South. 1027. This charge, however, was substantially covered by given charge 3.

Refused charge 16 is substantially covered by given charges B and 19.

There was no error in refusing charge 17, as this charge was substantially covered by given charge 30. — Way v. State, 155 Ala. 53, 46 South. 273.

(15) Charge 22 is bad, in that it pretermits defendant’s belief in his danger. This identical charge was condemned in Watts v. State, 177 Ala. 24, 59 South. 270.

(16) Charge 23 is also bad, and has been condemned in Watts v. State, supra. It pretermits belief in the danger and also duty to retreat if he could have done so safely.

(17) Charge 24 was defective and bad. As written, it was certainly an invasion of the province of the jury, in that it seeks to have the court charge as a fact that the defendant was free from fault in bringing on the difficulty. — Woods v. State, 10 Ala. App. 19, 64 South. 644; Watts v. State, 177 Ala. 28, 59 South. 270.

(18) While charge 25 refused to the defendant has been approved as an abstract proposition of law (Brown v. State, 118 Ala. 111, 23 South. 81), all charges must be construed in connection with the facts in the particular case; and the court cannot be put in error for refusing this charge when it is considered as applied to the evidence in this case, for the fact of the defendant’s having killed the deceased was not a disputed fact resting on circumstances in which the conduct of the defendant was a matter of consideration as tending to show his guilt or innocence; but, on the contrary, the killing of the deceased by this defendant was an undisputed fact, admitted by this defendant himself, and the defendant relied for defense entirely on his plea of self-defense. Under this state of the evidence, the charge in question submitted to the jury in substance and effect only the question whether or not the conduct of the defendant upon a reasonable hypothesis was consistent with his having acted in self-defense. The charge as referred to the evidence submitted a question of law to the jury- — i. e., whether or not the defendant acted in self-defense; and the court cannot be put in error for refusing such a charge.

There seems to be no objection to be taken to refused charge 26, as it states a correct proposition of law; however, there was no error in its refusal in this instance, for it is not error to refuse instructions substantially covered by instructions given, and it appears that this charge was substantially covered by given charges 1, 3, B, C, 18, 19, and 21.

Refused charge 27 was approved in Brown v. State, 118 Ala. 114, 23 South. 81, but there was no error in its refusal, for said charge was substantially covered by given charge 3.

(19) Refused charge 28 has. been held in this opinion as not being proper. It is identical with charge 15, and there was no error in its refusal. — Watts v. State, 177 Ala. 24, 59 South. 270.

(20) There is no merit in the contention that it was error to refuse charge 29, for the charge is bad and has been condemned in Phillips v. State, 162 Ala. 14, 50 South. 194; Bailey v. State, 168 Ala. 4, 53 South. 296, 390; Smith v. State, 161 Ala. 94, 49 South. 1029.

(21) Charge 32 was faulty, in that it was argumentative and also obscure in meaning. — Watts v. State, 177 Ala. 24, 59 South. 270.

(22) Charge 33 was bad. The character of doubt which authorizes an acquittal is a reasonable doubt, and this charge is faulty, in that it omits the word “reasonable” before the word “doubt.” — Green v. State, 168 Ala. 104, 53 South. 284; Kirby v. State, 151 Ala. 66, 44 South. 38.

(23) There was no error in refusing charge 34. It is argumentative, and is bad. Facts as brought out by the evidence in the case must govern the jury in its deliberations, and it is their duty to try cases according to the facts, and not according to whether public peace and good order will be promoted by a conviction or an acquittal.

(24) Charge C was faulty and incomplete, and there was no error in its refusal.

(25) Charge D was argumentative, and was properly refused. It is also misleading, because of the word “circumstances.” — Bailey v. State, 168 Ala. 4, 53 South. 296, 390.

(26) Charge 35 is bad, as it omits the word “reasonable” • as qualifying the word “doubt.” — Green v. State, 168 Ala. 104, 53 South. 284; Kirby v. State, 151 Ala. 66, 44 South. 38; Ducett v. State, 186 Ala. 34, 65 South. 351.

Refusal of charge 36 was without error, although a good charge, as it had been substantially covered by given charge A.

(27, 28) Refused charge 40 was bad in that it pretermits: (1) The defendant’s bona fide belief that he .was in imminent peril; and (2) the duty of defendant to retreat if he could have safely done so. It is objectionable otherwise in that it uses the collective word “self-defense,” and fails to define the constituent elements thereof. — Ragsdale v. State, 12 Ala. App. 12, 67 South. 783; Plant v. State, 140 Ala. 52, 37 South. 159. A charge incomplete in itself may be properly refused. — Jones v. State, 13 Ala. App. 12, 68 South. 690.

(29) Refused charge 46 is bad. Charges of similar character have been condemned by the courts. This charge also appears to be abstract, there being no evidence in this case showing or tending to show any prejudice or ill feeling upon the part of any witness against the defendant. — Branch v. State, 10 Ala. App. 94, 64 South. 507; Jackson v. State, 5 Ala. App. 306, 57 South. 594. This charge is substantially a duplicate of given charge 41.

Charge CC is bad, in that it singles out the testimony of the defendant. However, this charge was otherwise properly refused, it having been substantially covered by given charges 2 and 49.

There being no reversible error, the judgment is affirmed.

Affirmed.