The wife of the deceased; testifying for the state, said:
"I heard Nolen (defendant) make a threat against my husband the day of the trial; that was the day before he was killed. The trial was on Monday. He looked right at my husband and said: 'There will be another day besides this one, old boy.' "
This was the day before the homicide, in the courthouse, just after a trial where defendant had been the prosecutor in a criminal prosecution of deceased. The statement was in the nature of a threat, and was admissible.
On the cross-examination of Dr. Waldrep, the court refused to permit defendant's counsel to ask, "Was Ryan drunk when you saw him that morning?" The shooting took place about 3 or 4 o'clock in the afternoon. The ruling of the court was free from error for two reasons: First. At the time this question was asked there was no evidence tending to prove an overt act on the part of deceased towards defendant, attendant with danger to life or limb. Cooke v. State, 18 Ala. App. 416, 93 So. 86. Second. The time inquired about was too remote. Cain v. State, 17 Ala. App. 530,86 So. 166.
Defendant's counsel on direct examination asked defendant, while being examined as a witness, "You had to go through that place in order to go to the other place?" Objection by the state to this question was sustained. In this there was no error. The authorities cited by appellant are not in point. It is always permissible to prove facts, which tend to explain the acts or conduct of the defendant, but it is not permissible to prove conclusions or to allow defendant to make self-serving declarations. Largin v. State, 20 Ala. App. 550, 104 So. 50.
On the examination of Maddox, a witness for defendant, the following occurred:
"Defendant's counsel then asked the witness this question: Did you hear Ryan make a threat against defendant?
"Witness answered: All I heard him say was that nobody could check at him and get by with it. He said that that fellow had better take out or he was liable to leave there suddenly.
"Defendant's counsel then asked the witness this question: Who said that?
"Witness answered that Ryan, and then he told Mr. Nolen he wanted to see him personally.
"On motion of the solicitor, the court excluded the statements of witness that Ryan told Nolen he wanted to see him personally, because it was illegal, immaterial, and irrelevant testimony and not in the nature of a threat, and was not a part of the res gestæ, to which action of the court defendant's counsel then and there in open court duly excepted."
The remark excluded was not a part of the threat proven, and its exclusion was not error.
There were other exceptions reserved, but the foregoing are all that are insisted upon in brief of counsel.
The other exceptions are examined, and in each instance the rulings of the court were without error or were of such character as not to have injuriously affected the substantial rights of defendant.
We find no error in the record, and the judgment is affirmed.
Affirmed.