8 Div. 571.
May 24, 1927. Rehearing Denied August 2, 1927.
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
J. Monroe West was convicted of manslaughter in the first degree, and he appeals. Affirmed.
Certiorari denied by the Supreme Court in 217 Ala. 62, 114 So. 570.
It appears that Asbury Murray left his house about "dusk dark" and walked toward a wood in the rear and to the west of his house, and five or six minutes afterwards his wife heard three pistol shots fired in rapid order and saw a flash light, in the direction taken by Murray. Other witnesses testified to hearing three shots and seeing the light. Thereafter Murray was found dead with three bullet holes in his body, one in the back of his head, one in the back of his neck, and one in the back under his shoulder. There was also evidence tending to show that Murray was 69 or 70 years old and decrepit.
The defendant's evidence tended to show that defendant and Stewart, both police officers, went to the settlement in which Murray lived, but separated, defendant going in one direction around or into a thicket and Stewart in another; that defendant came upon Murray, flashed his light on him, disclosing that Murray carried a sack full of jugs over his shoulder and a quart bottle which appeared to contain whisky in his hand; that defendant told Murray he was a police officer and to consider himself under arrest; that when defendant approached him Murray knocked the flash light out of defendant's hand and struck defendant on the head with the bottle knocking him to his knees; that a rock was thrown over defendant, and he fired two shots in the direction from which the rock was thrown; that he called to Stewart, who came up with a flash light; that Murray was found on his all fours, sinking to the ground, dying almost immediately. Defendant's evidence further tended to show that the bottle was found on the ground near Murray's body, the cork pulled and whisky running out of it. The bottle and some of the contents were identified and introduced in evidence.
These charges were given for the state:
"A. I charge you, gentlemen of the jury, that under the undisputed evidence in this case there were three wounds in the body of the deceased, Asbury Murray.
"B. I charge you, gentlemen of the jury, that if you are satisfied from the evidence, beyond a reasonable doubt, that the arrest of Asbury Murray was an unlawful arrest, and that said Asbury Murray did not use more force than was reasonably necessary in resisting defendant, and the defendant killed him, then the defendant would be guilty of some offense charged in this indictment.
"C. I charge you, gentlemen of the jury, that if you are satisfied from all the evidence in this case, beyond a reasonable doubt, that the defendant is guilty, it is your duty to convict him although you believe it is possible that he is not guilty.
"D. I charge you, gentlemen of the jury, that if you are satisfied from the evidence in this case beyond a reasonable doubt that the defendant had not known or recognized that the deceased had whisky in his possession until after he shot him, then he would be guilty in attempting to make an illegal arrest."
G. O. Chenault, of Albany, Sample Kilpatrick, of Hartselle, and A. A. Griffith, of Cullman, for appellant.
Defendant should have been permitted to show the instructions and information given him by the chief of police. Gibson v. State, 193 Ala. 12, 69 So. 533. Charges given for the state were erroneous and prejudicial. Adams v. State, 175 Ala. 8, 57 So. 591; Jones v. State, 100 Ala. 88, 14 So. 772; Gibson v. State, supra; Warsham v. State, 17 Ala. App. 181, 84 So. 885; Sharpley v. State, 18 Ala. App. 620, 93 So. 210; Barnett v. State, 16 Ala. App. 539, 79 So. 675; Huguley v. State, 15 Ala. App. 189, 72 So. 764; Dill v. State, 25 Ala. 15; Tarwater v. State, 16 Ala. App. 140, 75 So. 816; Ezzell v. State, 13 Ala. App. 161, 68 So. 578; Williams v. State, 44 Ala. 41; 5 C. J. 416.
Charlie C. McCall, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty. Gen., for the State.
There was no error in overruling defendant's motion to exclude the state's evidence; the corpus delicti having been proved, and there being sufficient evidence of defendant's guilt to present a jury question. Jimmerson v. State, 19 Ala. App. 306, 97 So. 746; Brown v. State, 19 Ala. App. 574, 99 So. 156. Details of defendant's reason for going to the place and explicit instructions of his superior were not admissible. Barfield v. State, 19 Ala. App. 374, 97 So. 378. At any rate, presence of an officer on streets within his jurisdiction is at all times proper. Cobb v. State, 19 Ala. App. 345, 97 So. 779. And defendant had only a suspicion that accused was violating the law. White v. State, 18 Ala. App. 96, 90 So. 63. Since defendant did not know deceased was violating the law at the time of the attempted arrest, it matters not that deceased was violating the law, and testimony as to bottles found at the scene of the killing next morning was immaterial, no part of the res gestæ. Mangino v. Todd, 19 Ala. App. 486, 98 So. 323; Folmar v. State, 19 Ala. App. 435, 97 So. 768; Johnson v. State, 19 Ala. App. 141, 95 So. 583. What a witness told some other party as to the happening was an attempt to bolster the testimony of such witnesses, and was not admissible. Sexton v. State, 19 Ala. App. 408, 98 So. 705. Deceased was justified in resisting an unlawful arrest. Johnson v. State, supra. Defendant must have known positively that deceased was committing a misdemeanor to justify an arrest without warrant. Cobb v. State, supra.
From a judgment of conviction for manslaughter in the first degree, this appeal was taken.
The indictment preferred by the grand jury against this appellant, defendant in the court below, charged murder in the first degree in that he unlawfully and with malice aforethought killed Asbury Murray by shooting him with a pistol. The verdict of the jury finding him guilty of manslaughter in the first degree operated as an acquittal of the accused of the offenses of murder in the first and second degrees, and renders unnecessary a discussion of all questions here presented which relate only to the offense or charge of murder. The jury fixed the punishment at seven years' imprisonment in the penitentiary.
At the conclusion of the evidence for the state, upon the direct, defendant moved the court to exclude all the evidence. This motion was properly overruled, and the insistence to the contrary is without merit and cannot be sustained. The evidence at this juncture tended to show that the deceased had been killed by having been shot, and the undisputed evidence disclosed that there were three bullet holes in the back of deceased. Thus the corpus delicti was proven and there was ample evidence as to the guilt of the defendant to present a jury question.
It was shown that appellant was a policeman of the town of Albany on active duty. As such he had a right to be in any part of the city. Consequently the court did not err in refusing to allow testimony as to the instructions given to the said policeman by his chief about going to the particular part of the city where the homicide occurred. Especially is this true as there was nothing in the testimony tending to show any motive, on the part of the defendant for killing the deceased, arising or existing prior to the time of the actual difficulty.
A vital question in the case, so far as deceased's right to resist the attempted arrest, which alleged resistance caused his death, was as to whether or not defendant at the time of arresting or attempting to arrest deceased knew and recognized that deceased was then and there engaged in the commission of a misdemeanor. This, since admittedly defendant had at the time no lawfully issued warrant to arrest deceased. Therefore defendant's testimony showing that such bottles and jugs were not taken into consideration by him at the time of the difficulty, the court properly refused testimony by the chief of police as to later finding certain jugs and bottles near the scene. For a like reason the testimony as to such jugs and bottles by Walter Rainey was properly refused.
The testimony of the witness Gailey, as to what Robert Stewart, who was under joint indictment with defendant for the killing of the deceased, had and said a short time after the killing, was properly excluded. A witness may not corroborate or fortify his testimony by showing his declarations or acts. Sexton et al. v. State, 19 Ala. App. 408, 98 So. 705.
The special charges given at the request of the state, four in number, are not numbered, or otherwise designated or identified. This should always be done in order to avoid confusion. We have lettered these charges A, B, C, D. Charge A was sustained by the undisputed evidence in this case. It is admitted in brief of counsel that:
"No one ever examined the negro's (deceased's) body for wounds, except his son, who saw the body at the undertaker's on the next afternoon, and he testified he was shot in the back of the head, in the back of the neck, and back underneath the shoulder. There were three holes behind and one in front of the neck where the bullet in the back of the neck came through."
This charge having been given, it became a part of the law in the case and was to be considered by the jury in connection with the oral charge of the court, and in the exhaustive and most excellent oral charge, covering as it does about 20 pages of this transcript, the court repeatedly instructed the jury as to the correct hypothesis in considering and weighing the evidence. See, also, Cowen v. Eartherly Hdw. Co., 95 Ala. 324, 328, 11 So. 195. The three remaining charges given at request of the state properly stated the law and were in line with the general oral charge of the court.
Several of the charges refused to defendant were affirmative in their nature. From the evidence in this case these charges were properly refused as the defendant was not entitled to the affirmative charge.
Some of the refused charges deal only with the question of murder; the defendant having been acquitted of murder in either degree by the verdict of the jury, the refusal of these charges could have in no manner injuriously affected his substantial rights.
Numerous other charges were refused to defendant, but we find upon examination each of such charges that contain correct statements of the law were fairly and substantially covered by the court's oral charge and in several instances by charges given at the instance of defendant.
We discover no error of the court in the rulings invoked and to which exceptions were reserved. In our opinion this defendant was tried in a careful and painstaking manner, that he received a fair and impartial trial; and more than this he has no right to expect or demand. The record is regular in all things. Let the judgment of conviction in the circuit court stand affirmed.