4 Div. 919.
June 30, 1921. Rehearing Denied October 13, 1921.
Appeal from Circuit Court, Coffee County; J. B. Foster, Judge.
Sollie Sollie, of Ozark, and W. S. Huey, of Enterprise, for appellants.
The court was in error in its ruling on the evidence. 139 Ala. 217, 35 So. 698; 136 Ala. 58, 34 So. 177. Involuntary exclamations, uttered at the time, are admissible. 83 Ala. 287, 3 So. 671; 178 Ala. 636, 59 So. 461; 10 Ala. App. 95, 64 So. 507; 124 Ala. 14, 26 So. 979. The impeaching testimony as to Mrs. Thomas was improper. 82 Ala. 16, 2 So. 683; 19 Ala. 620; 113 Ala. 620, 21 So. 328; 1 Ala. App. 136, 56 So. 29. The assault upon the state's witness in the argument was clearly erroneous. 68 Ala. 475; 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037; 181 Ala. 90, 61 So. 801; 110 Ala. 42, 20 So. 360; 170 Ala. 72, 54 So. 494; 159 Ala. 51, 48 So. 662.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
Most of the objections came too late. 192 Ala. 373, 68 So. 283; 194 Ala. 211, 69 So. 614. There was no error in the rulings on the evidence. 4 Michie's Ala. Dig. 294; 13 Michie's Ala. Dig. 714. There was no error in permitting the argument to the jury. 38 Cyc. 1490.
The trial court did not err in not permitting one of the defendants, Jim Thomas, to testify as to his intentions or purpose to attend a party the night of the homicide as an excuse for being at the Brown home, the place of the killing. 4 Michie's Digest, p. 161, § 238. Moreover, the trial court permitted evidence by his mother that he told her when leaving home that afternoon that he was going to the party that night.
There was no reversible error in permitting the state to cross-examine Mrs. Thomas as to matters brought out by the defendant, or in permitting predicates for a contradiction by statements made by her as to when she first heard of the killing and of the whereabouts of the defendants. She had manifested ignorance of the killing until Sunday, and had testified where the defendants were between the killing and their arrest, and which had a tendency to counteract the state's evidence tending to show flight or an evasion of an arrest.
Although a party is not allowed to impeach his own witnesses, he is not precluded from giving evidence which varies from or contradicts said witnesses. Upson v. Raiford, 29 Ala. 188; Winston v. Moseley, 2 Stew. 137. This being true, he has the right to argue to the jury any facts and circumstances legitimately tending to show that they should believe the variant or contradictory evidence instead of said witness. 38 Cyc. p. 1490. The trial court did not therefore err in not excluding so much of the argument of counsel for the prosecution as attacked the testimony of Mrs. Reeves, the wife of deceased and which was in conflict with the evidence of other state's witnesses, or in refusing defendant's requested charge which we mark (5). We do not mean to hold, however, that said charge could not have been refused without error, even if the law was otherwise.
There was no error in refusing the defendant's other requested charges. If not otherwise bad, they invaded the province of the jury, as they were not justified under the state's evidence.
While we have not discussed each ruling upon the evidence to which an objection was made or attempted, all of them have been considered, and, as the record discloses no reversible error, the judgment of the circuit court is affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.