Opinion
8 Div. 453.
February 9, 1932.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
Coleman Stover was convicted of assault with intent to murder, and he appeals.
Affirmed.
The following charges were refused to defendant:
"7. The Court charges the jury that the law presumes that the defendant has testified truthfully in this case, and that it is your duty to reconcile his testimony and the testimony of all the other witnesses in this case with the presumption that he is innocent, if you can reasonably do so.
"8. Gentlemen of the Jury, you should acquit the defendant, unless the evidence excludes from your mind every reasonable supposition but that of guilt."
"12. The Court charges the jury that if the defendant was without fault in bringing on the difficulty, and if, at the time of the homicide, there appeared so apparent as to lead a reasonable mind to the belief that it actually existed, a present, impending and imperilous necessity, in order to save his own life, or in order to save himself from fatal bodily harm, to kill the deceased then he had the right to shoot the deceased, and the jury must acquit him on the ground of self-defense."
Almon Almon, of Decatur, for appellant.
It was error for the court to allow the state to prove the defendant's general bad character, not limited to general bad character as a witness. Smith v. State, 197 Ala. 193, 72 So. 316; Cox v. State, 162 Ala. 66, 50 So. 398; Sweatt v. State, 156 Ala. 84, 47 So. 194. Defendant's refused charges correctly state the law. (7) Crisp v. State, 21 Ala. App. 449, 109 So. 283; (12) Gaston v. State, 161 Ala. 37, 49 So. 876.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
Where accused has testified in his own behalf, the state may, for the purpose of impeaching his credibility, ask witnesses his general character in the neighborhood in which he lived, without restricting the inquiry to his reputation for truth and veracity. Mitchell v. State, 94 Ala. 68, 10 So. 518; Baugh v. State, 215 Ala. 619, 112 So. 157; Grayham v. State, 22 Ala. App. 170, 113 So. 646: 28 Ala. So. Dig. 495, § 337 (2). Charge 7 was properly refused. Defendant's interest in the case may be considered in weighing his testimony. Montgomery v. State, 18 Ala. App. 213, 91 So. 630; Smith v. State, 165 Ala. 50, 51 So. 610; Mann v. State, 134 Ala. 1, 32 So. 704; Sanford v. State, 2 Ala. App. 81, 57 So. 134; Mann v. State, 20 Ala. App. 540, 103 So. 604; Crisp v. State, 21 Ala. App. 449, 109 So. 282, was reversed by the Supreme Court. Crisp v. State, 215 Ala. 2, 109 So. 287. Charge 8, based upon supposition, was properly refused. Brasher v. State, 21 Ala. App. 255, 107 So. 230; Ward v. State, 21 Ala. App. 551, 109 So. 897. Charge 12 is bad in ignoring the duty to retreat and failing to hypothesize defendant's belief that he was in danger. King v. State, 17 Ala. App. 536, 87 So. 701; Davis v. State, 214 Ala. 273, 107 So. 737; Prince v. State, 215 Ala. 276, 110 So. 407; 15 Ala. So. Dig. 387, § 300 (15).
Appellant was convicted of the offense of assault with intent to murder. Code 1923, § 3303.
He testified as a witness in his own behalf. It was therefore competent for the state to impeach his credibility. For this purpose inquiring into his general character, or reputation, was proper. And such inquiry was not restricted to his reputation for truth and veracity. Mitchell v. State, 94 Ala. 68, 10 So. 518; Byers v. State, 105 Ala. 31, 16 So. 716.
True, it is the duty of the court (to), and on proper request he must, instruct the jury that such testimony is to be considered only in passing upon the weight and credibility of his (defendant's) evidence (testimony), not as evidence of guilt of the offense charged, unless the defendant has put his good character in issue. Baugh v. State, 215 Ala. 619, 112 So. 157.
We find no error in any ruling of the trial court, in this case, with regard to the introduction of testimony tending to impeach appellant.
Appellant's written, requested, and refused, charge 8 does not state the law, and was properly refused. Ward v. State, 21 Ala. App. 551, 109 So. 897.
Appellant's written, requested, charge 12 was properly refused as it ignored the duty to retreat, and failed to hypothesize that appellant believed he was in danger. King v. State, 17 Ala. App. 536, 87 So. 701; Prince v. State, 215 Ala. 276, 110 So. 407.
While a majority of this court did give approval to a charge, similar in all respects to appellant's written, requested charge 7, in the case of Crisp v. State, 21 Ala. App. 449, 109 So. 282, yet that same majority corrected its error in so doing, in the later case of Murphy v. State, 22 Ala. App. 163, 113 So. 623. And this court is now definitely on record, in accordance with the law, in holding that such a charge is properly refused. Murphy v. State, supra, and authorities therein cited.
We find no prejudicial error anywhere, and the judgment of conviction must be, and is, affirmed.
If there are elements in the case that cause the punishment meted out to seem unduly severe, they are properly cognizable not here, but before the pardoning power.
Affirmed.