Summary
In Davidson v. State, 211 Ala. 471, 100 So. 641, the Alabama Supreme court held that requested instructions which are inapplicable to the evidence are properly refused.
Summary of this case from Hamilton v. City of BirminghamOpinion
8 Div. 635.
April 17, 1924. Rehearing Denied June 19, 1924.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
P. W. Shumate, of Guntersville, for appellant.
The venire should have been quashed. Code 1907, § 7229. There was error in the admission of evidence by the witness Ola Nailor. Rollings v. State, 160 Ala. 82, 49 So. 329; Whitaker v. State, 106 Ala. 30, 17 So. 456; Curtis v. State, 118 Ala. 125, 24 So. 111; McCormack v. State, 102 Ala. 161, 15 So. 438; Hardeman v. State, 14 Ala. App. 35, 70 So. 979; I. C. v. Lowery, 184 Ala. 443, 63 So. 952, 49 L.R.A. (N.S.) 1149; Laws v. State, 209 Ala. 174, 95 So. 819; Lambert v. State, 208 Ala. 42, 93 So. 708. The mere statement by the deceased that he was going to die did not constitute his statement a dying declaration. Titus v. State, 117 Ala. 16, 23 So. 77; Justice v. State, 99 Ala. 180, 13 So. 658; Young v. State, 95 Ala. 4, 10 So. 913. The argument by the solicitor was objectionable. Glass v. State, 147 Ala. 50, 41 So. 727; Anderson v. State, 104 Ala. 83, 16 So. 108; Moulton v. State, 199 Ala. 411, 74 So. 454; Piano v. State, 161 Ala. 88, 49 So. 803; Wolffe v. Minnis, 74 Ala. 386; Sullivan v. State, 66 Ala. 48; Cross v. State, 68 Ala. 476; B. R., L. P. Co. v. Drunnen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The venire may not be attacked for irregularity of the jury commission. Garner v. State, 206 Ala. 56, 89 So. 69; Jones v. State, 17 Ala. App. 447, 86 So. 123; Reed v. State, 18 Ala. App. 371, 92 So. 513; Milligan v. State, 208 Ala. 223, 94 So. 169. Excusing a grand juror is not ground for quashing the indictment. Caldwell v. State, 203 Ala. 412, 84 So. 272. Evidence as to defendant's acts of hostility toward deceased prior to the difficulty was admissible. Blair v. State, ante, p. 53, 99 So. 314; 1 Mayfield's Dig. 837; Folkes v. State, 17 Ala. App. 119, 82 So. 567. The statement made by deceased that defendant shot him was admissible. Evans v. State, 209 Ala. 563, 96 So. 923; 1 Mayfield's Dig. 284, 671. There being no motion to exclude the argument of the solicitor, there is nothing for review. Ex parte State, 210 Ala. 96, 97 So. 573; Lambert v. State, 208 Ala. 42, 93 So. 708. Charges not predicated upon the evidence are properly refused. Edwards v. State, 205 Ala. 160, 87 So. 179. Doubt in the mind of a single juror does not authorize an acquittal. Wood v. State, 17 Ala. App. 654, 88 So. 28. Charges using the word "supposition" are bad. Walters v. State, 19 Ala. App. 92, 95 So. 207.
The fact that one of the jurors, Tom Edmonds, did not reside in Marshall county, did not afford a ground for the challenge of the entire array of regular jurors drawn for the week nor for a motion to quash the entire venire. Section 29 of the Jury Law; Acts 1909, p. 317; Whitehead v. State, 206 Ala. 288, 90 So. 351; Smith v State, 209 Ala. 666, 96 So. 779, and cases there cited. Neither was there error in refusing to quash the venire because of error in the name of Jurors Bagwell and Kennemar. Section 29 of the Jury Law; Smith v. State, supra; Jones v. State, 17 Ala. App. 447, 86 So. 123. The fact that the trial court excused a grand juror for a good and sufficient cause or excuse did not affect the validity of the indictment; from aught appearing there were a sufficient number left to constitute a legal grand jury.
There was no error in permitting the state to prove by the witness Ola Nailor that defendant was armed with a gun when at her house with the deceased the day of the killing and just previous thereto, that the defendant threatened to kill deceased, and that he walked off by him with his gun drawn. These facts seem to have been a part of a continuous transaction resulting in the homicide, which occurred shortly thereafter down the road after the parties left the house of the witness. Blair v. State (Ala. Sup.) 99 So. 314; Jordan v. State, 81 Ala. 20, 1 So. 577
Ante, p. 53.
There was no error in admitting the deceased's statement that the defendant shot him as a proper predicate was laid to render it a dying declaration.
The other objections and exceptions to the rulings on the evidence are so manifestly without merit that a discussion of same can serve no useful purpose.
That portion of the argument of the solicitor as objected to was not so objectionable as to constitute reversible error. Ex parte State ex rel. Davis, Attorney General, 210 Ala. 96, 97 So. 573. Moreover, there was no motion to exclude same. Lambert v. State, 208 Ala. 42, 93 So. 708.
There was no error in refusing defendant's requested charge 1. In the first place, it is not based on the evidence in the case. Edwards v. State, 205 Ala. 160, 87 So. 179. Second, it is abstract, as there was no evidence that the character of the deceased was that of a dangerous or violent man.
Charge 2 was properly refused. If not otherwise bad, it instructs for an acquittal if any one juror has a reasonable doubt of the defendant's guilt. This fact should prevent a conviction, but would not authorize an acquittal. Charges 3 and 4 are likewise faulty. Charge 5 was well refused for the use of the word "supposition." Walters v. State (Ala.App.) 95 So. 207. Charge 6 is abstract, there being no evidence as to the character of the defendant. Charge 7, whether good or bad, was substantially covered by several of the given charges as well as the oral charge of the court. Same as to charges 8, 9, and 10. Charge 11 pretermits a consideration of the evidence.
19 Ala. App. 92.
Charge 12 was not only abstract, but assumed that there was proof of good character for the defendant when there was no such proof. Charge 13 was covered by given charge 5. Charge 14 was bad for the use of the word "supposition." Moreover, the principle asserted was covered by many of the given charges. Charge 15 instructs for an acquittal if the jury entertain a reasonable doubt as to whether or not defendant acted upon a well-founded belief of peril, and pretermits the other elements of self-defense. Charge 16 was covered by several given charges. Charge 17 asserts no sound proposition of law.
Charge 18 invaded the province of the jury, as it was for them, under the evidence, and not the court, to say whether or not defendant was guilty of a higher degree of crime than manslaughter in the second degree.
The verdict of the jury was not contrary to the great weight of the evidence or the inferences to be drawn therefrom, and the trial court did not err in refusing the motion for a new trial.
The judgment of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.
On Rehearing.
It is suggested upon rehearing that the original opinion, in dealing with the objections to the evidence of Ola Nailor, proceeds upon the idea that it related to the sayings and conduct of defendant when at her home in the afternoon and just before the killing and takes no account of the objections and exceptions to what she states as to what occurred during the first visit; that is, in the morning. There was no error in permitting this witness to testify that defendant told deceased he was going to kill him. This same witness was asked by the solicitor, "Did he go away?" Answer, "Willie walked off by him, and him with his gun drawed on him in the yard at my house." This evidence was not responsive to the question which was asked by the solicitor and not the defendant's counsel, and the only ground in the motion to exclude the same was because not responsive, and not because it was illegal or incompetent. It is a well-settled rule that only the party asking the question can move to exclude a nonresponsive answer upon the sole ground that it is not responsive. Patrick v. State, 18 Ala. App. 335, 92 So. 87, and cases there cited. Moreover, we are not persuaded that this evidence violated the rule against going into the particulars of a previous difficulty. The fact that defendant drew his gun on the deceased did not involve the merits or details of a former difficulty, but was in the nature of a threat or menace. Threats are admissible and they can sometimes be made by acts or conduct as well as by words. We repeat that the record in this case discloses no reversible error on the part of the trial court, and the application for rehearing is overruled.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.