Opinion
4 Div. 596.
May 19, 1932.
Appeal from Circuit Court, Henry County; H. A. Pearce, Judge.
W. L. Lee, of Dothan, for appellant.
It was not permissible for witness Jim Roney to give his opinion as to the reason why defendant was carrying the gun. Hill v. State, 137 Ala. 66, 34 So. 406; State v. Houston, 78 Ala. 576, 56 Am. Rep. 59; Alabama City G. A. R. Co. v. Sampley, 169 Ala. 372, 53 So. 142. It was prejudicial error to allow cross-examination of witnesses Vann and Armstrong as shown by assignments 6, 7, 8, and 9. The fact whether defendant had written a note or not, and that witnesses heard of it, was not evidence relating in any wise to defendant's character. Jones v. State, 76 Ala. 8; Rutledge v. Rowland, 161 Ala. 114, 49 So. 461, 462; McQueen v. State, 108 Ala. 54, 18 So. 843; Smith v. State, 47 Ala. 540; Moore v. State, 68 Ala. 360. There was no dispute as to how deceased was shot, no evidence as to powder burns, and no controversy as to the fact of the shooting and proximity of the parties. It was therefore highly prejudicial to permit the clothes of deceased in evidence. 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; Louisville N. R. Co. v. Pearson, 97 Ala. 219, 12 So. 176.
Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.
Proper predicate having been laid, there was no error in admitting the confession of defendant. Burton v. State, 115 Ala. 1, 22 So. 585; Green v. State, 160 Ala. 1, 49 So. 676. The extent of cross-examination of a witness is within the discretion of the court. Further, a motion to exclude evidence on which no ruling was made presents nothing for review. Henderson v. State, 19 Ala. App. 80, 95 So. 57; Pitts v. State, 140 Ala. 70, 37 So. 101. There was no error committed in overruling objections to questions to witnesses Vann and Armstrong on cross-examination. Stout v. State, 15 Ala. App. 206, 72 So. 762; Id., 198 Ala. 695, 73 So. 1002. Nor in overruling motions to exclude. Andrews v. State, 159 Ala. 14, 48 So. 858; Bodine v. State, 18 Ala. App. 514, 93 So. 264. Defendant set up a plea of self-defense claiming that he was attacked by deceased and shot him at close range. Hence, the state was properly allowed to introduce the clothing which showed no powder burns, as tending to disprove defendant's story. Watkins v. State, 89 Ala. 82, 8 So. 134; Andrews v. State, supra; Huguley v. State, 4 Ala. App. 29, 58 So. 814; 7 Alabama and Southern Digest, 392, § 404 (9).
The appeal is from a conviction for murder in the second degree. The deceased was killed by a pistol shot, and the evidence as to defendant's confession that he fired the fatal shot was preceded by proof entirely sufficient to establish its voluntary character.
The defendant's proof tended to sustain his theory of self-defense. He insists deceased was advancing upon him with an open knife and cut his clothes as well as corn sack he had with him, and he offered his clothing in evidence in corroboration of his theory of the case. It is inferable from his proof that the fatal shot was fired at close range.
The state's proof tended in contradiction of defendant's theory. For the stated purpose of showing no powder burns, the state was permitted to offer the clothes worn by deceased when shot. This ruling did not constitute reversible error. Watkins v. State, 89 Ala. 82, 8 So. 134; Andrews v. State, 159 Ala. 14, 48 So. 858.
Assignments of error 3 and 4 relate to evidence elicited on cross-examination of defendant's witness and clearly within the range of the court's discretion. Southern Bitulithic Co. v. Perrine, 191 Ala. 411, 67 So. 601; Alabama Power Co. v. Shaw, 215 Ala. 436, 111 So. 17.
This observation is likewise applicable to assignments of error 5 to 9, inclusive.
The record has been examined and considered with due care, with the result that we find no error to reverse.
Let the judgment be affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.