Culliver v. State

EVANS, J.

Appellant was indicted for murder; the jury found him guilty of manslaughter in the first degree.

(1) The plea in abatement, misnomer, was without merit. Appellant was indicted as “Dave Culliver.” His true name according to the plea is “Dave Cullifer.” They are idem sonans, and the court properly sustained the demurrer. — Rooks v. State, 83 Ala. 79, 3 South. 720.

(2) The next insistence is that the court erred in giving the part of the oral charge excepted to. This excerpt or fragment of the charge set out in the bill of exceptions consists of a single' sentence. When consideréd alone, unaided by the context of the charge, the instruction is incomplete and faulty. Whether what followed qualified and explained what went before we are unable to say from the meager excerpt. In Gardner’s Case, 96 Ala. 12, 11 South. 402, the court said: “A disconnected sentence or part of a charge, although it does not describe all the constituents of the offense, will not of itself work a reversal. Where the whole charge given by the court ex mero motu is set out, the several parts must be construed together, and each part construed in the light of its context. Where, as in the present case, a mere passage, or statement of the charge is excepted to, omitting the remainder of the charge, we must presume that the court properly charged the jury in regard to the fundamental intent or purpose which actuated the defendant, and followed it by the statement to which the exception is reserved.”

(3) Counsel insists that the court was in error in permitting-witnesses to testify that appellant drew his pistol on the mother and sister of deceased after the shooting had occurred. The evidence, in substance, shows that two shots were fired by appellant at the deceased; that deceased, notwithstanding he was mortally wounded, closed in on the appellant and engaged him in a tussle; that while they were thus engaged, deceased’s sister and mother ran up, and the former pulled the deceased’s arm from around the neck of appellant, and at the time tried to take a pistol out of the hand of appellant. About this time appellant pulled himself loose, shoved the sister aside, and shoved his assailant into a ditch, where he almost immediately expired. Appellant, after pulling loose - and shoving the -deceased into the ditch, ran a short distance (some 2 or 3 steps, according to the testimony of the sister, Mrs. Matthews, and some 25 of 30 according to the testimony of the mother) and then turned and pointed his pistol at the two women. In this state of the evidence, we think the pointing of the pistol at the two women was properly admitted, not only as a part of the res geste, but also to show a hostile and malicious state of mind. It cannot be said that the act of pointing the pistol at the two women was an after matter, and not comprehended within the res geste; the incidents and details of the difficulty were so intimately related in point of time as to blend into one continuous transaction. Smith’s Case, 88 Ala. 73, 7 South. 52, was where the accused pursued and shot at the companion of deceased. There it was held, as it must be here, that the pursuit of the companion was a part of one continuous transaction, and consequently a part of the res geste. See, also, Williams’ Case, 147 Ala. 24, 41 South. 992; Smith’s Case, 183 Ala. 24, 62 South. 864.

(4) Written request by appellant to charge numbered 1 was condemned in Phillips’ Case, 162 Ala. 14, 50 South. 194.

(5) Appellant’s request to charge numbered 2 is a mere abstract argument, without an accurate statement of principle, and was properly refused.

There is no error in the record, and the judgment of the court below is affirmed.

Affirmed.