Opinion
7 Div. 223.
May 4, 1922.
Appeal from Circuit Court, Talladega County; S.W. Tate, Special Judge.
C. S. Ellis, of Talladega, for appellant.
Brief of counsel did not reach the Reporter.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The motion to exclude the answer of Howell that deceased identified defendant as the man who cut his throat came too late, no objection having been made to the question. 13 Michie, Ala. Dig. 720. The evidence having made out a case of grand larceny, charges 12 and 13 were properly refused. Code 1907, §§ 6269, 7324.
The defendant was tried and convicted of murder in the first degree, and by its verdict the jury fixed his punishment at death.
The judgment entry was sufficient, and no question was reserved to review the action of the court with respect to venire, etc. Anderson v. State, 18 Ala. App. 429, 93 So. 68.
The predicate was sufficient to admit deceased's declaration that he identified the defendant as the one who inflicted the injury from which deceased died shortly thereafter. Curry v. State, 203 Ala. 239, 82 So. 489.
At the time the question was sought to be propounded by defendant, "Now what per cent. [alcohol] does that show on the label there?" — referring to a bottle of extract produced in court — no sufficient evidence had been introduced to render the answer relevant, nor was the court informed of defendant's theory whereby other evidence was expected to be introduced that would render the evidence sought to be elicited relevant. The fact that evidence was thereafter introduced by defendant that, when arrested, a bottle of extract was found on him, and that he was under the influence of intoxicants, was not sufficient to identify the bottle exhibited to witness Dr. Dixon, and of which he was sought to be interrogated as stated. Moreover, the bottle of extract was not introduced in evidence, and, if so, the label thereon was the better evidence of its content. There was no error in declining like question by defendant to witness Wren.
Charges 12 and 13, refused to defendant, sought to instruct the jury that, under the evidence, deceased was not authorized to arrest, or attempt to arrest, the defendant, and that in making such attempt he was committing a trespass on the person of defendant. The charges were properly refused. Witness Atkins testified that the value of the sweater supposed to have been stolen by defendant from the storehouse was of more than $5 in value, and the testimony was such that it authorized the reasonable inference that the sweater was stolen by defendant from the store in which Atkins was at the time clerking. This circumstance, if believed by the jury, made a case of grand larceny under the provisions of section 7324 of the Code, and gave application to provisions of section 6269 of the Code, as follows:
"An officer may also arrest any person, without warrant, on any day and at any time, for any public offense committed, or a breach of the peace threatened in his presence; or when a felony has been committed, though not in his presence, by the person arrested, or when a felony has been committed, and he has reasonable cause to believe that the person arrested committed it; or when he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed; or on a charge made, upon reasonable cause, that the person arrested has committed a felony." Deason v. Gray, 192 Ala. 611, 69 So. 15; Gibson v. State, 193 Ala. 12, 69 So. 533.
Under this phase of the evidence the charges sought would have denied consideration of the relevant question of fact which was before the jury for determination. If the jury believed that the article was of $5 or more in value, that it had been taken from the storehouse by defendant, and that the police officer was making an effort to arrest him because of this felony, at the request of the owner or person in charge of the store who had informed the officer of the commission of the felony by the defendant, the jury was authorized to find that deceased had authority to place defendant under arrest without becoming a trespasser for so doing.
The jury was fully and fairly instructed by the court, in general and special charges, on the law having application to the evidence. No reversible error being disclosed, the judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN, SAYRE, SOMERVILLE, GARDNER, and MILLER, JJ., concur.