Linnehan v. State , 120 Ala. 293 ( 1898 )

DOWDELL, J.

The defendant was tried and convicted of manslaughter in the second degree, under an indictment for murder. Motion was made by the. defendant in arrest of judgment “on the ground that the defendant, as shown by the record in this case, was not on trial for manslaughter in the second degree.” This motion was overruled by the court, and we have no doubt of the correctness of the ruling. There is. nothing in the contention that a conviction for manslaughter in the second degree cannot be had under an indictment for murder. The charge in the indictment of the higher offense of murder includes the lower grades of homicide. Manslaughter in the second degree is an unlawful killing, and is necessarily included in an indictment for the higher offense of murder. The question raised by this motion is fully answered by the statute.— Code, 1896, § 5306. See, also, Hudson v. State, 34 Ala. 253; Henry v. State, 33 Ala. 389; the latter case overruling Bob v. State, 29 Ala. 20.

The defendant testified as a witness in his own behalf, and upon- his cross-examination by the solicitor, was asked if he put the pistol in his pocket and followed Oakley (the deceased) down the street, the time the witness, J. B. Cooper, testified about. The defendant answered, that he put the pistol in his pocket and went down the street the same way Oakley had gone. The solicitor then asked'the witness, “What did you get that pistol for?” The defendant objected to the question, the court overruled the objection, and required the witness to answer ; and the answer was ; “Just got it and put it i.n my.pocket.” Motion was made by defendant to exclude the answer, which was .overruled, and exception to the ruling reserved. The defendant further . testified on cross-examination, that he went down the street and stood awhile,.and went back and put it (the pistol) up. The solicitor then asked the witness : “How came you to put the pistol up when you went back?” to which he answered : “Because Cooper said it was Naugher’s pistol.” This question and answer were also objected to by the defendant, and exception reserved to the action of the court in overruling the objection.

The objections made to both of these questions were general, not specifying any ground, and for that reason were bad.—Gunter v. State, 111 Ala. 23. But apart from the generality of the objection, it was permissible upon a cross-examination of the defendant, when sworn as a witness in his own behalf, to inquire as to his motives for particular acts relevant to the issues, though it would not be competent for him to testify as to his motives as an excuse for-liis acts, upon his direct examination. If the evidence sought to be elicited by the question to the defendant, was to show that the defendant had put the pistol in his pocket and gone down the street, the way Oakley, the deceased, went, for the purpose of using it on Oakley, and this was within the scope and purview of the question, then it was certainly competent. The case of Burke v. State, 71 Ala. 382, cited by counsel for defendant, does not contravene this proposition. In that case it was decided that the defendant testifying in his own behalf, could not, on his direct examination, tell his motives for certain particular acts of his ; and there can be no doubt of the soundness of that decision; but the proposition, and the reasons therefor, are quite different when the adversary party on a cross-examination institutes an inquiry into the motives of the witness, who is a party to the suit, for particular acts of his which are themselves relevant to the issues.

There was nothing objectionable in the solicitor’s standing up before the witness and motioning his hands in illustration, when he asked the witness the question, “If Oakley did not tell him to go on off just before the shooting, and motion this way?” See Gunter v. State, supra.

One Tesney, a witness for the State, testified to a conversation with defendant in which defendant made certain confessions as to guilt. On cross-examination this witness was asked: “If defendant did not say to him about twenty minutes after the above conversation, that he defendant had done nothing wrong and wanted to come to court and stand his trial.” The question being objected to by the State, the objection was sustained, and defendant excepted. The court did not err in not permitting the question to be asked. There was nothing showing that it had any connection with or relation to the conversation which had. terminated twenty minutes previously. It was simply an independent declaration in interest and clearly inadmissible.

The written charges asked were properly refused. The first written charge was intended as the general affirmative charge, and should have been infused, if it had been correctly written, but it omits the word find, which rendered it unintelligible as asked. The other two charges are faulty in several respects. They not only do not assert correct legal propositions, but are involved and misleading.

In accordance with the verdict of the jury, the court sentenced the defendant to twelve months hard labor for the county of Walker, and the costs not being presently paid nor judgment confessed as provided by the statute, made additional sentence to hard labor to pay the costs. The judgment as to costs is as follows: “It is furthur ordered and adjudged by the court that the defendant perform additional hard labor for the county of Walker not to exceed eight months as will be sufficient to satisfy the costs in the case, working at thirty cents per day.” The court by this sentence and judgment failed to determine the time required to work out the costs. It is true the judgment says not to exceed eight months, and working at the rate of thirty cents a day, but this is not sufficient under, nor a compliance with, section 4532 of the present code. That section provides that the court’must determine the time required to work out the costs, and that must be done whenever a convict is sentenced to hard labor for the county, and this determination of the time of hard labor for the costs should be shown in the judgment or sentence of the court. Such a judgment as the court rendered in this case was held by this court to be good under the law of the Code of 1876, prior to the act of February 18, 1895, which enacted the present section 4532 into law, but there was no requirement then that the court should determine the time required to work out the costs at thirty cents a day. This is the only error contained in the record, and on account of this omission in the sentenee, the judgment of the circuit court will be reversed as to the sentence, and the cause remanded for further sentence by the circuit court as indicated above.

Reversed and remanded.