Opinion
8 Div. 298.
April 7, 1921.
Appeal from Circuit Court, Limestone County; O. Kyle, Judge.
J. G. Rankin, of Athens, for appellant.
No brief reached the Reporter.
J. Q. Smith, Atty. Gen., and W. R. Walker, of Athens, for the State.
The predicate was sufficiently laid for a dying declaration. 139 Ala. 74, 36 So. 138, 101 Am. St. Rep. 17; 152 Ala. 38, 44 So. 619. The motion to exclude went for the entire answer, and hence was not good. 190 Ala. 10, 67 So. 237; 180 Ala. 576. The court may permit leading questions. 171 Ala. 112, 55 So. 156, Ann. Cas. 1913A, 1103; 87 Ala. 24, 5 So. 829. In any event, the evidence was admissible. 146 Ala. 66, 41 So. 274. Dr. Allen's statement was competent. 194 Ala. 11, 69 So. 941, 2 A.L.R. 509; 181 Ala. 35, 61 So. 336. The qualification of the infant was for the court. 109 Ala. 64, 19 So. 530. Counsel discuss refused charges, but without citation of authority.
Indictment for murder; conviction of murder in the second degree.
The question calling for the dying declaration of deceased was supported by a proper predicate. Gerald v. State, 128 Ala. 6, 29 So. 614; Sims v. State, 139 Ala. 74, 36 So. 138, 101 Am. St. Rep. 17; McEwen v. State, 152 Ala. 38, 44 So. 619. If any part of the answer was outside the proper scope of a dying declaration, the motion to exclude was addressed to it as a whole, and hence was properly overruled. Autrey v. State, 190 Ala. 10, 67 So. 237.
The only ground of objection taken against the state's question to the witness Jarrett was that it was leading. It was within the discretion of the court to permit a leading question. Such rulings are not revisable. Brassell v. State, 91 Ala. 45, 8 So. 679. And the assignment of a specific ground of objection to the question constituted a waiver of all other grounds. Floyd v. State, 82 Ala. 16, 2 So. 683. But additional grounds of objection were urged in the motion to exclude, and these, it seems, should be considered on their merits. The answer of the witness showed that about five minutes after defendant shot deceased, defendant said to deceased, who was lying on the ground and had said that he could not get up: "You d_____d fool; stand up." This evidence as to the statement of defendant, addressed to deceased in person and so soon after defendant had inflicted a mortal wound upon him, was properly received, since the jury may have construed it as evincing a state of hostility to deceased antedating the shooting. Smith v. State, 183 Ala. 10, 25, 62 So. 864.
The statement made by defendant to the witness Dock Allen, as detailed by the witness, was competent and relevant. It was an incriminatory statement, not illegal per se nor was any objection interposed to the question by which the answer was elicited. It appeared that defendant's real objection to this answer was that defendant's statement, shown thereby, was not of the res gestæ of the homicide; but, being incriminatory in nature, no rule of evidence required that it should be of the res gestæ.
The question as to the competency of the witness Louise Roberts, an infant child of deceased, was for the trial court in the first instance. That court had a better opportunity to form a proper judgment than we can have on appeal, and we are not at all clear to the conclusion that the court in this case committed error when it allowed the testimony of the child to go to the jury. Wade v. State, 50 Ala. 164; Grimes v. State, 105 Ala. 86, 17 So. 184.
There was no error in the ruling by which the court allowed this witness to testify that defendant frequently came to their house when the witness' father was away. This and other evidence tended to show a motive on the part of defendant. Furthermore, it served as an introduction, proper in part at least, to the testimony of the child, tending to show a threat made by defendant against deceased on the occasion of such a visit.
The evidence of the defendant, testifying as a witness in his own behalf, was amply sufficient to exclude the idea that he desired to have the jury draw an inference that he was so drunk on the occasion of the killing as to be unable to form a specific intent to take life, and hence charge 4 was correctly refused to him. We think, moreover, that, even if there were any room for the proposition of his charge, defendant had the full benefit of it in the court's oral instruction to the jury.
Charges 5 and 6 were well refused to defendant, for, on the hypothesis of these charges, defendant might have been convicted of manslaughter in the second degree, whereas, on the fact hypothesized, these charges required an acquittal of any offense. And so charges 11 and 15 were properly refused for the reason that the defendant might have been convicted of manslaughter in the second degree, even though the killing was not intentionally done.
Charges 13, 14, and 17, even though it be conceded that they might have been proper in any event, were fully covered by given charge 16. And charge 18 was bad for the reason that defendant might have been guilty of manslaughter if, as the evidence tended to show, he aimed his weapon at deceased, even though having no intention to shoot him. The statute, section 6893 of the Code, makes it a criminal offense to present any firearm at another.
Charges 19, 20, 23, 27, and 30 were properly refused on grounds already indicated. They were, moreover, calculated to mislead the jury.
It is clear that there was no error in refusing the several affirmative charges as to the several degrees of unlawful homicide. It was open to the jury, under the evidence, to convict defendant of any degree.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.