Opinion
1 Div. 968.
May 12, 1931. Rehearing Denied May 19, 1931.
Appeal from Circuit Court, Monroe County; J. S. Williams, Judge.
William H. Pelham was convicted of manslaughter in the first degree, and he appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in Pelham v. State, 223 Ala. 155, 134 So. 890.
The following charges were refused to defendant:
"A. The court charges the jury that there is no evidence in this case showing or tending to show that the defendant contributed to or brought on the difficulty with the deceased."
"7. The court charges the jury that it is not necessary under the evidence in this case that the defendant should have been in actual danger of death, or great bodily harm, at the time he killed the deceased, or that retreat would have really increased his peril, in order for him to be justified in killing the deceased. He had a right to act on the appearance of things at the time, taken in the light of all the evidence, and he had a right to interpret the conduct of deceased in the light of any threat that the evidence proved deceased to have made against the defendant, if the circumstances attending the killing were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he could not have retreated without adding to his peril, and he honestly believed such to be the case, then he had a right to strike in his own defense, although as a matter of fact he was not in actual danger and retreat would not have endangered his personal safety; and if the jury believe from the evidence that the defendant acted under such conditions and circumstances as above set forth, the burden of showing that he was not free from fault in bringing on the difficulty is on the State, and, if not shown, the jury should acquit the defendant."
"14. The Court charges the jury that if the circumstances attending the killing of the deceased were such as would justify a reasonable man in the belief that he was in danger of great bodily harm or death and that he could not retreat without adding to his peril, and the defendant believed such to be the case, he was justified in cutting the deceased, although he was not in actual danger and retreat would not have added to his peril, and if the defendant acted under such circumstances the burden of showing that the defendant was not free from fault in bringing on the difficulty is on the State."
C. L. Hybart, of Monroeville, for appellant.
The indictment is not evidence in a criminal case, and the jury should be so instructed at defendant's request. Prater v. State, 193 Ala. 40, 69 So. 539. Refused charge 7 was not covered by the oral charge or given charges; it correctly states the law and should have been given. Bluett v. State, 151 Ala. 41, 44 So. 84; Buffalow v. State, 219 Ala. 407, 122 So. 633. The witness Arnold should not have been permitted to testify that defendant gave him a knife and told him to destroy it. This was no part of the res gestæ, but was in the nature of a confession by defendant that he had killed deceased, and was subject to the rules relative to the admission of confessions. McGehee v. State, 171 Ala. 22, 55 So. 159. Upon showing that the juror Bilbray's half-sister had married the brother of deceased, the case should have been taken from the jury. Ledford v. State, 75 Ga. 856.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
Charge 3 was argumentative and well refused. Morris v. State, 146 Ala. 66, 41 So. 274. Other charges refused to defendant were covered by the oral charge and other given charges. Hence their refusal was without reversible error. Code 1923, § 9509. On a trial for homicide, the state may show, as a part of the res gestæ, what accused did and said immediately after he killed deceased. Pate v. State, 150 Ala. 10, 43 So. 343; Hammond v. State, 147 Ala. 79, 41 So. 761; Williams v. State, 147 Ala. 10, 41 So. 992; Harris v. State, 177, Ala. 17, 59 So. 205; Vintson v. State, 22 Ala. App. 338, 115 So. 695. Also a declaration of accused is admissible as showing his frame of mind at the time of the homicide. Johnson v. State, 183 Ala. 79, 63 So. 163. The juror did not know of the relationship until after the trial, and hence such relationship could not have been prejudicial. 35 C. J. 318; People v. Schmitz, 7 Cal.App. 330, 94 P. 407, 419, 15 L.R.A. (N.S.) 717; Northcutt v. Jouett, 18 Ky. Law Rep. 327, 36 S.W. 179; Salisbury v. McClaskey, 26 Hun, 262; Traviss v. Com., 106 Pa. 597. Furthermore, defendant's right to challenge for cause was waived by failure to take advantage thereof. Braham v. State, 143 Ala. 28, 38 So. 919; Hurt v. Southern R. Co., 205 Ala. 179, 87 So. 533.
Appellant was convicted of the offense of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for the term of five years.
Upon two former trials, under the same indictment he was convicted, first of murder in the second degree, next of manslaughter in the first degree. Both judgments of conviction were here reversed on appeal. The evidence, on all three trials, was substantially the same, and it has heretofore been narrated, and discussed, by this court to what we regard an ample degree to illustrate the few holdings we feel called upon to here declare. See Pelham v. State, 22 Ala. App. 529, 117 So. 497, and Pelham v. State, 23 Ala. App. 359, 125 So. 688.
Since the bill of exceptions, on this appeal, contains no mention of an exception reserved to the trial court's action in overruling appellant's motion for a new trial, it would here be out of place for us to make any comments upon the weight and sufficiency, vel non, of the evidence to support the verdict of the jury, any way. Grace v. Old Dominion Garment Co., 213 Ala. 550, 105 So. 707.
In the midst of the trial of the case, the appellant asked that the jury be allowed to withdraw from the courtroom, which they did. And, out of the presence of the jury, he made a motion that the case be withdrawn from the jury, and the cause continued, on the ground that it had "just been made known to him that Clarence Bilbray's half sister had married Joe Oliver, a brother of the deceased." (Clarence Bilbray was one of the jurors trying the case.) This motion was overruled, and appellant reserved an exception to the court's action.
We do not think the exception has merit. Juror Bilbray would not have been subject to challenge for cause, even had the above information been declared on his voir dire. Code 1923, § 8610. And it is not shown that appellant was denied any right to procure information, etc., as provided in Code 1923, § 8662.
It having been shown that deceased was stabbed by a knife, in the hands of appellant, there was no error in permitting the witness Grady Arnold to testify that, just a few minutes after the killing, appellant gave him a knife and told him to destroy it. There was testimony from which the jury might have inferred that this was the same knife with which appellant stabbed deceased, and "the destruction or concealment of pertinent evidence is always a prejudicial circumstance" etc. Lancaster v. State, 21 Ala. App. 140, 106 So. 609, 615; 2 Wharton, Ev. par. 748.
Appellant's written requested charge No. 3 was in the following language: "You are to give no consideration to the fact that the grand jury indicted the defendant in reaching your verdict. You are to base your verdict solely on the evidence as it comes from the witness stand and the law as the Court has given it to you."
The trial court refused this charge, and the substance of same was not otherwise given to the jury.
We find no error in the refusal of this charge. True, the trial court, it appears, could have given same, without his action having been subject to criticism. Prater v. State, 193 Ala. 40, 69 So. 539. But the charge was "a mere argument and was properly refused." Morris v. State, 146 Ala. 66, 101, 41 So. 274, 284. This refused charge 3 being similar in all respects to the charge referred to in the quoted language, above, from the opinion in the Morris Case, we must necessarily follow the holding in that case. Code 1923, § 7318.
We find no fault with the action of the trial court in allowing the question, on cross-examination of appellant's witness Taylor McCants, as to whether he (McCants) had a knife at the time and place of the fatal difficulty. It would seem that allowing the question to be put, and requiring an answer to be given, did not transcend the rules permitting a thorough and sifting cross-examination of the witness. Then, besides, there was testimony from which the jury could have inferred that witness had the knife for the purpose of going to appellant's aid, should he need aid.
Appellant's written requested charge A asserts no proposition of law, and hence was properly refused. Johnson v. State, 152 Ala. 46, 44 So. 670.
Appellant's written requested charge 14 was properly refused, if for no other reason, because it omits to hypothesize his freedom from fault in bringing on the difficulty.
Appellant's written, requested charge 7 is in the identical language of defendant's written, requested charge 26, held to be good in Bluett v. State, 151 Ala. 41, 44 So. 84. It has ever since been declared prejudicial error to refuse such a requested charge, in cases where same was applicable, unless, forsooth, the substance of same was otherwise given to the jury; the latest utterance by our Supreme Court to this effect coming to our attention being in Buffalow v. State, 219 Ala. 407, 122 So. 633.
In this case, the court has read and considered the pertinent testimony, sitting en banc. We are of the opinion, and hold, that said written, requested charge 7 was not abstract, and neither was its substance fully given to the jury otherwise. For the error in its refusal, the judgment of conviction is reversed, and the cause remanded.
Reversed and remanded.