This is the third appeal in this case; the first being from an order of the judge of the circuit court denying defendant bail, and resulting in an affirmance here. Ex parte Tyler,17 Ala. App. 698, 89 So. 926. The second appeal was from a judgment of conviction for murder in the first degree resulting in a reversal by the Supreme Court. Tyler v. State, 207 Ala. 129,92 So. 478.
The evidence offered by the state tended to show that the defendant, on December 12, 1920, while under the influence of liquor, went to the home of J.M. Tyler, defendant's father, where the deceased was a guest visiting the widowed sister of the defendant, Mrs. Silvia; that defendant had protested against deceased's attention to Mrs. Silvia; that when defendant arrived at the home of his father the deceased was playing with two of Mrs. Silvia's children in the kitchen, and that Mrs. Silvia and the baby were in the adjoining room; that defendant, without the slightest provocation or semblance of justification, shot the deceased, inflicting upon his person wounds that caused his death.
The defendant offered some evidence tending to show that he was on his way to his brother's, carrying his brother some medicine; that he stopped by his father's home, and entered the home by the kitchen door; that deceased seized and attacked him; and, in a scuffle for defendant's pistol, the weapon was discharged, inflicting the wounds that caused the death of the deceased.
The defendant's motion to quash the venire and his objecting to being put to trial because two of the veniremen drawn for the defendant's trial had served as jurors on the former trial of the defendant was without merit, and was properly overruled. Stover v. State, 204 Ala. 311, 85 So. 393; Morris v. State,18 Ala. App. 135, 90 So. 57.
The veniremen who had served on the jury on the previous trial were subject to challenge for cause and by exercising the right of challenge for cause, if they were objectionable to defendant, these veniremen would have been stricken from the list, without curtailing the defendant's strikes or peremptory challenges. Wickard v. State, 109 Ala. 45, 19 So. 491; Stover v. State, supra.
The question addressed to Mary Alexander, "Who were your physicians, who treated him?" and that addressed to Dr. Wilkinson, "How long have you known him (deceased)?" were preliminary in character, and the defendant's objection was properly overruled.
There was evidence tending to show that the motive prompting the homicide was *Page 383 to put an end to the attention the deceased was showing Mrs. Silvia, and her testimony that her husband was dead, that she was living at her father's, that she was the mother of the children present in the house at the time of the homicide, and the ages of the children, was not without relevancy as shedding light on the motive of the defendant and the conduct of the deceased at the time of the homicide. While evidence as to motive is not essential, it is always competent. Jones v. State, 13 Ala. App. 10, 68 So. 690; Brunson v. State,124 Ala. 40, 27 So. 410.
It is not essential that a dying declaration, if made under a sense of impending death, should be wholly voluntary.
They "are admitted upon the theory that the consciousness of approaching death dispels from the mind all motive for making a false statement, in view of the fact that the party recognizes the fact that he shall soon appear in the presence of his Maker." Parker v. State, 165 Ala. 1, 51 So. 260.
The predicate was sufficient to authorize the admission of the dying declaration. Tyler v. State, 207 Ala. 129, 92 So. 478.
The testimony of the witness Mrs. George Silvia, given on the preliminary trial, was only admissible to impeach her testimony on the present trial, after proper predicate had been laid for such purpose, and the court properly admitted such as tended to contradict her and corresponding to the several predicates laid on her cross-examination, and properly excluded the other portion of her testimony.
The witness, Mrs. E.S. Tyler, testified: "I did not say in that statement that Lon was drunk, but he must have been drunk or something, I reckon, but I don't know how that was," and so much of the written signed statement made by this witness, to wit, "Lon was drunk" was admissible to contradict her testimony; hence the defendant's general objection to all of the statement, was not well taken. Longmire v. State, 130 Ala. 67,30 So. 413; Wright v. State, 136 Ala. 139, 145,34 So. 233.
The solicitor, in his closing argument to the jury, made the following statements to the jury: "We have got too much killing around here." "Don't you know we have." "Do you know why?" The defendant objected to each of these statements and moved to exclude them because they were improper. The court overruled the defendant's objection and motion and to these rulings the defendant reserved exception.
In each of these rulings the court committed reversible error. The statement of the solicitor, "We have got too much killing around here," was the statement of a fact, of which there was no evidence, and if evidence had been offered of this fact it would not have been admissible. Alabama Fuel Iron Co. v. Williams, 207 Ala. 99, 91 So. 879; McAdory v. State,62 Ala. 154; Cross v. State, 68 Ala. 476; Flowers v. State,15 Ala. App. 220, 73 So. 126; Strother v. State, 15 Ala. App. 106,72 So. 566; B. R. L. P. Co. v. Drennen, 175 Ala. 349,57 So. 876, Ann. Cas. 1914C, 1037; B'ham Ry. L. P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543.
In some of the authorities cited, the Supreme Court said:
"However reluctant an appellate court may be to interfere with the discretion of a primary court in regulating the trial of causes, if it should appear that it had refused, to the prejudice of a party, to compel counsel to confine their arguments and comments to the jury, to the law and evidence of the case under consideration — if it had permitted them to refer to and comment upon facts not in evidence, or which would not be admissible as evidence, it would be a fatal error."62 Ala. 163.
"Now, there was not only no evidence before the jury of that other homicide, or its details, but such evidence, if offered, would have been illegal and irrelevant. This was not argument, and could furnish no safe or permissible aid to the jury in considering and weighing the testimony before them. The jury, in their deliberations, should consider no facts, save those given in evidence." 68 Ala. 476.
The statements here brought in question were not only argument, but their scope and effect, however innocently made, was an appeal to the mob spirit to convict the defendant, regardless of the evidence because other killings had occurred in that county. The tendency and effect of their argument was to incense the minds of the jury and draw them away from the facts in the case. The defendant was entitled to have his case tried on the evidence without regard to other killings. The argument of defendant's counsel was clearly within the issues and the improper argument of the solicitor cannot be justified on the theory that it was made in answer to the argument of defendant's attorney.
Charge 1, refused to the defendant, assumes that Lon Tyler was a guest at his father's house, and was invasive of the province of the jury. Charge 2 is argumentative, elliptical, and otherwise faulty. Charge 4 is involved and relieved the defendant from the duty of retreating. Charge 5 pretermits imminent danger. Charge 7 was properly refused; the burden is not on the state to "disprove" that defendant was not free from fault. Charge 8 is not the law. Charge 9 is bad. Deliberation and premeditation is not essential to murder in the second degree.
For the error pointed out, the judgment is reversed.
Reversed and remanded