Winter v. State , 123 Ala. 1 ( 1898 )

McCLELLAN, C. J.

The trial court’s discretion as to granting or refusing continuance was not abused in this case. It not only put the State to an admission of wlnit the defendant’s absent witness would testify, but also gave defendant compulsory process to secure the attendance of the witness; and the attachment was ordered in time for the witness to have been brought under it before the trial closed. — White v. State, 86 Ala. 69; Childress v. State, 86 Ala. 77; Davis v. State, 92 Ala. 20; and see also State v. Lee, 22 So. Rep. (La.) 954.

It cannot be said that the age of the deceased at the time of the difficulty between him and defendant in which they fought with their fists and with sticks, was immaterial and irrelevant. And there was no error in allowing the witness Wilson who had known him for more than twenty years to testify that to the best of his judgment he was a man about forty-five years of age. Weed v. State, 55 Ala. 13. Martin v. State, 90 Ala. 602, "construed in the ligljt of the facts, is not opposed to this” view.

The defendant was tried under an indictment charging murder in the second degree. He was convicted of manslaughter in the first degree. It would seem that on this state of case errors, if any, committed by the trial court in defining lhurder in the second degree and expounding the law in respect thereto should be held to have involved no injury to the defendant. — Fallin v. State, 83 Ala. 5; Evans v. State, 109 Ala. 11; Code, §4333. But we do not find error in the parts of the court’s charge in this connection to which exceptions were reserved. Of these those numbered 1, 3 and 4 on the margin of the transcript are said to be erroneous only because they are inapplicable to the case, or, in other words, because they are abstract. It has been too often declared by this court to be now open to discussion, that a reversal cannot be' based upon the consideration that an instruction given is abstract. If defendant apprehended prejudice, he should have forestalled it by requests for explanatory charges.

What we have just said applies also to that part of the court’s charge which declares that malice may be presumed from the use of a deadly weapon; and, moreover, this was certainly not abstract for on the evidence as to the stick used by defendant, the stick itself being in evidencc, the jury had a right to find that it was a deadly weapon; and the charge does not take this question from them. In this view, Ave assume in appellant’s favor that the question as to whether the Aveapon was a deadly one Avas for the jury, hut Ave do not so decide. — Sylvester v. State, 72 Ala. 201. The Aveapon used Avas “an oaken stick, Avhich had been cut green and Avas'still flexible and pliant in some measure, about forty inches in length, three and a half inches in circumference at the butt o'r larger end, and tivo inches -in circumference at the smaller end, or top,” and Avith this \veapon the defendant struck the deceased on the side of the head. Whether the character of the Aveapon as being deadly or not Avas a question'for the court or jury, it is plain'that under these facts the court did not err in refusing to charge the jury that this stick Avas not a deadly Aveapon.

That one may be guilty of homicide by a bloAv not of itself mortal but Avhich accelerates death, is a proposition supported by the old case of Morea v. State, 2 Alá. 275, and many other authorities.—Tidwell v. State, 70 Ala. 33, 45; Bowles v. State, 58 Ala. 335, 339, and cases there cited; and if there be cases of death acceleration by a 1)1oav in Avhich the party delivering the bloAv is not responsible for the result this is not one of them.

We find the general charge of the court as to the evidence of the deceased’s character for violence, etc., to mean only this, that on the question of guilt vel non such evidence is immaterial Avhere the accused Avas the aggressor; and this is undoubtedly a sound exposition of the Iuav. If such evidence may be looked to by the jury after they find the defendant guilty in measuring his punishment, (for AA’hich there Avoulcl seem to be no Avarra'nt of Iuav, but AA'hich Ave do not decide as the point is not in the case), the charge gWen by the court did not preclude their doing so.

There Avas evidence before the jury that the defendant Avas drunk at the time of the fatal difficulty; and it Avas, therefore, the court’s duty to instruct the jury as to the bearing of this eAudence upon the question of his guilt. In the conclusion of a correct statement of the Iuav in this connection the court said: “Slight drunkenness or intoxication might tend to aggravate a crime instead of lessen it.” There are cases in which this Avould be true, and in making' this remark the court Avas speaking abstractly. That the case at bar Avas not one of this sort, in that it AAras not made to appear that defendant’s condition in this respect bore any relation in respect of its being brought about to the difficulty, and that the remark therefore may have tended to prejudice him in the minds of the jury affords no ground for a reversal of the judgment. The statement AATas true, and if injury from it Avere 'apprehended by the defendant he could have had its supposed misleading tendency corrected.

It may be that there are things human that are not subject to any kind of doubt; but when the court is speaking of a reasonable doubt arising upon human testimony, and certainly to the exclusion of such doubt on the testimony of witnesses, it is not conceivable Ihoav the jury could be misled to the defendant’s prejudice by the remark that “eArerything human is subject to some kind of doubt.” The statement being made in the connection it was meant no more than that all human testimony is susceptible of some sort of doubt in the sense that it does not establish facts Aidth mathematical certainty.

The foregoing are the only quetions treated of in the brief of appellant’s counsel. There are others reserved on the record, and we have examined them and found them to involve no error; but Ave deem it unnecessary to discuss them.

Affirmed.