Opinion
6 Div. 160.
June 21, 1932. Rehearing Denied November 1, 1932.
Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.
Floyd Hill was convicted of manslaughter the first degree and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Hill v. State, 225 Ala. 610, 144 So. 583.
The following charges were refused to defendant:
"1. The court charges the jury that in considering the question of the guilt or innocence of the defendant you should determine if possible the motive on the part of the defendant, and if you fail to find from the evidence, after considering it all, an improper motive on the part of defendant in committing the offense charged you should not convict the defendant."
"B. I charge you that the guilt of this defendant depends on the testimony of Clarence Bailey and if you are convinced beyond a reasonable doubt from the evidence in this case that Clarence Bailey is not a person worthy of belief then you may disregard the testimony of Clarence Bailey entirely and if you do so disregard the testimony of Clarence Bailey then you cannot convict this defendant."
"3. The court charges the jury that if they find from the evidence that the deceased, at the time the blow was struck, was making an assault on the defendant, and that the defendant in resisting said assault, used force not greatly disproportionate to the character of the assault, and death accidentally resulted, this would be self defense, and the jury should acquit him."
J. B. Powell, of Jasper, for appellant.
Defendant's refused charges each state correct propositions of law, were not covered by the oral charge, and should have been given. Dunn v. State, 19 Ala. App. 576, 99 So. 154; Martin v. State, 90 Ala. 602, 8 So. 858, 24 Am. St. Rep. 844. The fact that deceased was drinking could only be proved by defendant. Testimony that deceased and his brother were drinking at defendant's home was prejudicial to defendant.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The defendant was indicted on a charge of murder for the killing of Arthur Bailey, and on his trial was convicted of manslaughter in the first degree, and his punishment fixed at three years in the penitentiary.
The evidence for the state tended to prove the charge. The contention of defendant was that the shooting was done in a scuffle, in which the deceased was trying to shoot him with the pistol, and that defendant was trying to disarm deceased. The killing took place at defendant's home, located in an isolated place near the Bankhead highway across the river from Lynn's Park, in Walker county. From the testimony it appears that the deceased and his brother had been at the house for about an hour; that defendant's wife and another woman were there; that defendant came in later; that they were all drinking and more or less under the influence of whisky. In an effort to get the truth of what took place, the court permitted the state to prove: "That the deceased and his brother came to defendant's house, and that when they first came to defendant's house, defendant was not at home but that defendant's wife and a Thompson girl were there; that they drank some whisky that they got from the wife or the Thompson girl, and that after the defendant came in, which was about the time the deceased and his brother were leaving the house, according to the brother's testimony, and after they had gone out and fixed a puncture, they went back into the house and drank some more whisky, and the brother testified that he left the deceased in the house and that he heard no words pass but heard some scuffling, and as he ran around and started upon the porch his brother fell, his head falling near the steps to the porch and his feet and body extending back towards the door of the house." This testimony was all admissible as tending to prove the surrounding facts and circumstances leading up to and relating to the homicide. Coupled with the isolated location of the defendant's residence, these facts present a perfect setting for the row and shooting culminating in the death of one of the parties.
It was also competent as a part of the res gestæ to show that Arthur Bailey, the deceased, was one of the party in defendant's house drinking whisky just before the shooting. Defendant's counsel contends that this proof could only be made by defendant. We do not see the distinction. The mental condition of all the parties present at the time of the fatal difficulty was a proper inquiry — of the principals, as it affected their acts; of the others, as it would affect their testimony on the trial.
The court properly sustained the state's objection to the question asked by defendant as to when deceased left home that day. This question called for an answer not related in any way to the crime.
It having been proven by defendant that a pistol bullet was taken from the wall of the front porch shortly after this homicide, it was relevant to prove by other witness how and when such bullet was fired.
Where a defendant in a criminal case has testified in his own behalf, the state may, for the purpose of impeaching his credibility, prove his general bad character in the neighborhood in which he lives. 28 Alabama Southern Digest, p. 495, 337(2).
Refused charge 3 ignores the doctrine of freedom from fault. Refused charge B is abstract and invasive of the province of the jury, in that there was other evidence than that of Clarence Bailey, from which a jury might infer guilt. Charge 1 places a burden on the state not required by law. Proof of a motive is relevant, but not necessary to a conviction. Other charges refused were either covered by the court in his oral charge or are patently erroneous.
We find no error. The judgment is affirmed.
Affirmed.