8 Div. 895.
June 13, 1922.
Appeal from Circuit Court, Colbert County; C.P. Almon, judge.
Sam Williams was convicted of assault with intent to murder, and he appeals. Reversed and remanded.
The following were the charges refused to defendant.
(2) You cannot find Williams guilty as charged unless you believe from the evidence that the facts are such as would constitute premeditated killing with malice aforethought, had Woodall died from said shooting.
(6) If you believe from the evidence that Williams did nothing more than was necessary to protect himself against an assault by Woodall, if Woodall made an assault, you must find Williams not guilty, if Williams was free from fault in bringing on the difficulty.
Bowers, Dixon Bowron, of Birmingham, and G.E. Barnett, of Florence, for appellant.
The court erred in its rulings on the admission and rejection of evidence. 29 Ala. 457, 65 Am. Dec. 413; 191 Ala. 3, 67 So. 981; 151 Ala. 249, 44 So. 203; 137 Ala. 414, 34 So. 997; 125 Ala. 457, 28 So. 384; 172 Ala. 257, 54 So. 677; 171 Ala. 19, 55 South, 159; 86 Ala. 551, 6 So. 143, 4 L.R.A. 848 85 Ala. 154, 4 So. 669; 200 Ala. 103, 75 So. 479; 86 So. 89. The fact that defendant had been sick and was weak was relevant. 111 ala. 28, 20 south. 632 56 A,. St. Rep. 17; 134 Ala. 1, 32 So. 704; 143 Ala. 67, 39 So. 147; 88 Ala. 4, 7 So. 98 The court erred in remarking that all who carried pistols were law violators. 17 Ala. App. 674, 88 So. 211; 8 Ala. App. 46, 62 So. 977; 140 Ala. 137, 37 So. 233; 139 Ala. 47, 36 So. 1012; 90 Ala. 596, 8 So. 670.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
This cause is submitted on motion to establish a bill of exceptions and on the merits. Upon an examination of the record, we find that the judgment was rendered October 10, 1921, bill of exceptions regularly presented to the presiding judge December 20, 1921, and duly and regularly signed by him March 17, 1922, and filed with the clerk of the circuit court April 1, 1922. The presentation, signing, and filing appear to be in all things regular and legal, and the bill of exception being incorporated in the record, as it should be, there is no occasion for any action on the motion to establish the bill of exception and therefore the motion to establish is dismissed.
The defendant and Woodall, the assaulted party, were both employes of the Southern Railway, and had a difficulty in the superintendent's office in Sheffield, in which defendant shot and seriously wounded Woodall. During the cross-examination of Cameron, the superintendent of that division, the defendant undertook to prove that the defendant had not been discharged from the service of the railway company and that if acquitted defendant could recover of the railway company his back time. These facts, even if true, could not possibly have any bearing, even remotely, upon the issues involved in this case.
The witness having testified that he had not "helped to select the jury in this case," the fact that he looked over the jury list could not affect the issues.
The witness having testified on cross-examination that he had "talked it over with witness summoned for the state several times and gone into the details of the case with other witnesses," he was further asked to name the witnesses with who he had talked. This witness was the superintendent of the division under whom both defendant and Woodall worked; the difficulty occurred in his office and in his presence, and grew out of a controversy between the witness and defendant. The prior testimony of this witness had shown some activity on his part in the interest of the prosecution, and on cross-examination the defendant was entitled to inquire into the extent of his activities and to know which of the state's witnesses had been talked to by him, and even as to what he said to them, as tending to show bias. Banks v. State (Ala. sup.) 39 So. 921; Whitsett v. Belue, 172 Ala. 256, 54 So. 677.
If there was a concert of action, or conspiracy, or improper influence that would have a tendency to show a bias on the part of the State's witnesses in giving their testimony, the defendant would have a right to show it and, when the state's witnesses were on the stand and testifying, these things were the proper subjects of inquiry on cross-examination. Haisten v. State, 5 Ala. App. 56, South. 361. Nor is it necessary to lay a predict in order to ask such question on cross-examination. The Witness knows which of the state's witnesses he had been discussing the evidence with and what said, and the defendant did not. Who it was and what was said was the purpose of the question.
What was said to defendant, and what defendant said immediately after the shooting, as the resultant utterances of the parties present, was a part of the res gestæ and properly admitted.
The witness Woodall having testified that he did not employ counsel to prosecute the defendant, it was immaterial whether he knew counsel had been so employed or not.
Question seeking to prove that prior to the difficulty defendant had been sick were improper, and objections to them were properly sustained.
What effect the conviction or acquittal of the defendant would have with regard to his continued employment by the southern Railway company could have no bearing on the issues in this case.
The defendant, while being examined as a witness, was asked, "Do all trainmen carry guns on their runs?" to which answer was made: "Yes, sir, the biggest half of them do." Whereupon the court, in the presence and hearing of the jury, remarked that, "If they did, they violated the law." This remark, coming as it did from the court, in connection with the other testimony that had been given, could have no other effect than if he had said to the jury this defendant was at the time of this difficulty a law violator, and was an improper remark. The question as to why he had the pistol called for a conclusion, and who he got it from was immaterial; nor could the defendant testify as to his intent with which he fired the shot.
The remaining rulings of the court on the admission of testimony were free from error.
Charge 2 refused to defendant was bad. if the assault was malicious, no premeditation was necessary.
Charges 6 refused to defendant omits the doctrine of retreat.
For the error pointed out, the judgment must be reversed, and the cause remanded.
Reversed and remanded.