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holding that the prosecutor's characterization of the defendant as a "hard man to get along with" and "a man of high temper and bad disposition" was proper comment on the defendant's manner of testifying
Summary of this case from State v. WalshOpinion
7 Div. 686.
February 12, 1942.
Appeal from Circuit Court, Cherokee County; W. J. Haralson, Judge.
Reed Reed and F. M. Savage, all of Centre, for appellant.
The argument of the solicitor, in absence of testimony as to defendant's temper and disposition, constituted reversible error. In the state of the evidence, the verdict must have been the result of passion and prejudice, aided and influenced by such argument. DuBose v. State, 148 Ala. 560, 42 So. 862; Roden v. State, 13 Ala. App. 105, 69 So. 366; Kennedy v. State, 240 Ala. 89, 196 So. 884. It was error to permit the mother of the deceased to testify as to what she heard defendant say as he ran the pigs around the house. This was some time before the difficulty and was not a part of the res gestae. It was also error to permit this witness to testify what she heard defendant say later, witness not seeing deceased and not knowing to whom the remarks were addressed. The statement attributed to defendant by witness Pope purported to have been made some two hours after the difficulty. It was incriminatory and was in the nature of a confession, and was erroneously admitted without a showing that it was voluntary. Dudley v. State, 19 Ala. App. 519, 98 So. 490; Nalls v. State, 19 Ala. App. 146, 95 So. 591; Kelsoe v. State, 47 Ala. 537; Burns v. State, 49 Ala. 370; McAdory v. State, 62 Ala. 154; 1 Mayfield's Dig. p. 204; Weaver v. State, 24 Ala. App. 208, 132 So. 706; Smith v. State, 29 Ala. App. 227, 194 So. 702; James v. State, 24 Ala. App. 322, 135 So. 405. The jury was bound by the testimony and had no right to enter the field of speculation and conjecture in reaching a conclusion contrary to all the testimony offered on the trial. The scintilla rule does not obtain in criminal cases. Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Ervin v. State, 27 Ala. App. 4, 164 So. 828; McKee v. State, 26 Ala. App. 589, 164 So. 305. There was error in refusal of defendant's written requested charges.
Thos. S. Lawson, Atty. Gen., and John W. Vardaman and J. W. Arbuthnot, Asst. Attys. Gen., for the State.
The difficulty out of which the death of deceased arose is a part of the res gestae of the homicide. The statements defendant in regard to the pigs was admissible as a part of the res gestae. 6 Ala.Dig. Crim.Law, 364(2). It was not error to overrule objection to the testimony of witness Pope. Declarations by defendant upon, before or after the commission of a homicide, tending to connect him with the crime, are admissible as evidence against him. Brindley v. State, 193 Ala. 43, 69 So. 536, Ann.Cas. 1916E, 177; Robertson v. State, 23 Ala. App. 267, 125 So. 60; Id. 220 Ala. 328, 125 So. 61; Morris v. State, 25 Ala. App. 175, 142 So. 685; 6 Ala.Dig., Crim.Law, 412(2) (3). It was not error to overrule objection to the argument of the solicitor. Counsel are allowed considerable latitude in drawing their deductions from evidence in argument to the jury. Arant v. State, 232 Ala. 275, 167 So. 540. Furthermore, the solicitor's expression of opinion in his argument is not ground for reversal. Bruce v. State, 22 Ala. App. 440, 116 So. 511; 23 C.J. § 1102(b); Brothers v. State, 236 Ala. 448, 183 So. 433. There was substantial evidence to raise the question of fact which was properly submitted to the jury. Stephenson v. State, 28 Ala. App. 418, 185 So. 910. Charges on self-defense, ignoring the element of defendant's freedom from fault in bringing on the difficulty, were properly refused. Blankenship v. State, 11 Ala. App. 125, 65 So. 860.
The indictment and conviction were for murder in the first degree. The punishment was fixed "at life imprisonment."
No question is presented as to the arraignment, venire or form of verdict. The questions presented for decision on the appeal relate to the introduction of evidence and the refusal of requested charges.
The difficulty out of which the death of deceased arose is a part of the res gestae of the homicide, and when the whole evidence is considered, the statement of the defendant in regard to keeping the pigs out of the yard was admissible as a part of the res gestae. Alabama Digest, Criminal Law, 365(2).
Appellant also insists that the trial court erred in permitting the witness Pope to testify that two hours after the shooting, the defendant made the following statement: "That he was a dead shot. * * * Good marksman and could have drilled him but just winged him." It is settled in this jurisdiction that declarations against his interest by a defendant before or after the commission of a homicide tending to connect defendant with the crime in question are admissible as evidence against him if the same are shown to have been voluntary. The evidence indicates that such is a fact as to the foregoing declarations. Brindley v. State, 193 Ala. 43, 69 So. 536, Ann.Cas. 1916E, 177; Alabama Digest, Criminal Law, 412(2) and (3).
Appellant contends that reversible error was committed in the overruling of objection to the solicitor's argument wherein the latter stated, "that from his manner of testifying and attitude on the witness stand the defendant was a hard man to get along with," and "that the defendant was a man of high temper and bad disposition." This was the mere argument of a solicitor based on the appearance of the defendant as a witness in his own behalf and as related to the facts in the case was a proper observation and the subject of argument to the jury. Arant v. State, 232 Ala. 275, 167 So. 540; Anderson v. State, 209 Ala. 36, 95 So. 171; Canty v. State, 238 Ala. 384, 191 So. 260.
Under our decisions counsel are allowed a reasonable latitude in drawing their deductions from evidence and in the arguments to the jury, and the expression of opinion in argument based on the evidence is not grounds for reversal. 23 Corpus Juris Secundum, Criminal Law, § 1102, b. That is to say, as a general rule, it is not "improper to comment on the conduct of the accused or his counsel during the trial, provided the comment is within the bounds of fair argument or inference * * *." Brothers v. State, 236 Ala. 448, 183 So. 433.
On the trial of the cause requested charges 9, 10 and 11 were refused, the same being affirmative charges. Such action on the part of the trial court was without error under the respective tendencies of evidence. Stephenson v. State, 28 Ala. App. 418, 185 So. 910.
Defendant's requested charges number 12, 13, 14 and 15 were properly refused because each charge ignored the element of defendant's freedom from fault in bringing on the difficulty. Blankenship v. State, 11 Ala. App. 125, 65 So. 860; Morris v. McClellan, 154 Ala. 639, 45 So. 641, 16 Ann.Cas. 305; Johnson v. State, 102 Ala. 1, 16 So. 99; Caldwell v. State, 160 Ala. 96, 49 So. 679; Brewer v. State, 160 Ala. 66, 49 So. 336; Gilmore v. State, 126 Ala. 20, 28 So. 595.
When the whole record is carefully considered, we are of the opinion that the appellant received a fair and impartial trial; that the evidence was sufficient to justify the conviction, and that the record as presented shows no manifest error which injuriously affected the constitutional rights of appellant. Ruff v. State, 229 Ala. 649, 159 So. 94.
The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, C. J., and BOULDIN and FOSTER, JJ., concur.