Court of Appeals of AlabamaJan 12, 1932
24 Ala. App. 571 (Ala. Crim. App. 1932)
24 Ala. App. 571139 So. 113

6 Div. 181.

January 12, 1932.

Appeal from Circuit Court, Pickens County; Benj. F. Elmore, Judge.

Noah Long was convicted of murder in the second degree, and he appeals.


Patton Patton, of Carrollton, for appellant.

There being no direct evidence of the killing and the facts being based on circumstantial evidence, the court erred in refusing to allow the defendant to show that he had on the night of the killing, and just prior thereto, given deceased and his wife the use of a home for another year. Spicer v. State, 188 Ala. 9, 65 So. 972; Com. v. Abbott, 130 Mass. 472. The presence or absence of a motive for the commission of an offense charged is always a legitimate subject of inquiry. Clifton v. State, 73 Ala. 473; Welsh v. State, 97 Ala. 1, 12 So. 275. It is the duty of the trial judge to declare the law to the jury on each phase of the facts which the testimony tends to establish. No matter how weak or inconclusive the presiding judge may himself regard the testimony on any given question, he cannot ignore it in his charge. Smith v. State, 68 Ala. 424; Corbett v. State, 31 Ala. 329; Gooden v. State, 55 Ala. 178; Holmes v. State, 23 Ala. 17.

Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.

Self-serving declarations of the accused, not a part of the res gestæ, are never admissible. Montgomery v. State, 2 Ala. App. 25, 56 So. 92; Cole v. State, 21 Ala. App. 601, 110 So. 913; Id. 215 Ala. 432, 110 So. 914; Letson v. State, 215 Ala. 229, 110 So. 21. However, even if the evidence was admissible, its exclusion will not work a reversal, as the evidence was later admitted. Dukes v. State, 210 Ala. 442, 98 So. 368. There seem to have been no objection to the oral charge nor any written charges requested by defendant. Failure of the court to instruct on lesser offenses included in the charge cannot be considered for the first time on appeal. Ross v. State, 16 Ala. App. 393, 78 So. 309; Grisham v. State, 147 Ala. 1, 41 So. 997; McPherson v. State, 198 Ala. 5, 73 So. 387; Scott v. State, 15 Ala. App. 267, 73 So. 212.

Appellant was convicted of the offense of murder in the second degree.

We have carefully examined the entire record of the proceedings in the court below, but it seems unnecessary to discuss the facts, or to mention any rulings other than those discussed by appellant's able counsel, in their brief filed on this appeal.

There is no merit in the exception reserved to the ruling of the court denying appellant the right to inquire, on cross-examination of state's witness, the wife of deceased, as to his, appellant's, self-serving acts and statements done and made prior to the homicide.

Self-serving acts done and statements made by an accused, which are no part of the res gestæ, are never admissible in evidence. Cole v. State, 21 Ala. App. 601, 110 So. 913.

Appellant's said counsel here contend that the trial court was in error in failing to sufficiently charge the jury, in his oral charge, upon all the offenses embraced within the language of the indictment.

But such failure, even if it existed, cannot be questioned for the first time on appeal, nor by a mere objection and exception made and reserved on the trial in the court below. McPherson v. State, 198 Ala. 5, 73 So. 387.

Appellant appears to have had a fair trial, with no prejudicially erroneous ruling anywhere intervening.

The judgment of conviction is affirmed.