Rikard v. State , 209 Ala. 480 ( 1923 )

It is true that the name of "Ralph Gotcher" appeared upon the copy of the venire to try the case as served upon this defendant where his (the defendant's) name should have appeared, but the record also shows that both of them stood indicted for capital offenses, their cases were set for the same day, and each was to be tried by the same jury. Therefore the list served on the defendant contained the venire to try his case and conformed to the statutory requirement, and the fact that it contained thereupon Gotcher's name instead of his could not have misled or prejudiced the defendant, as he or his counsel knew that both of them were to have the same venire. Umble v. State, 207 Ala. 508, 93 So. 531.

The attempted predicate by defendant to impeach the witness Susie Norton as to statements made to Bob Adams and Jim Smith was irrelevant and improper at the time the questions were asked. They related to immaterial and irrelevant matter, as the details or particulars of the killing had not then been shown and no proof had at the time been offered as to self-defense or who provoked the difficulty. True, the witness had previously stated that her husband, the deceased, was unarmed when he left home, and the questions asked as to her statement to Adams and Smith may have tended to contradict her, but as to whether or not the deceased was armed when he left home was immaterial at this stage of the trial, and a witness cannot be impeached as to immaterial matter. This witness was subsequently introduced in rebuttal, and after the defendant had offered evidence tending to show self-defense, but there was no attempt to renew the predicate.

Neither was it relevant or material at this stage of the trial as to whether or not the deceased was on bad terms with the defendant's father, and the trial court did not err in sustaining the state's objection to the defendant's question which sought this information from Susie Norton when testifying upon her first examination.

The other objections and exceptions to the rulings upon the evidence are so palpably without merit that a discussion of same can serve no good purpose.

There was no error in refusing charge E requested by the defendant. It pretermits a reasonable doubt arising out of or upon a consideration of the evidence. Davis v. State, 188 Ala. 59,66 So. 67; Edwards v. State, 205 Ala. 160, 87 So. 179. Moreover, the charge fails to set out the elements of self-defense.

Charge B, like charge E, pretermits a reasonable doubt arising out of a consideration of the evidence. This charge, however, was not defective for not referring to not guilty by reason of insanity as noted thereupon by the trial judge. Gilbert v. State, 172 Ala. 386, 56 So. 136.

Charge G, refused the defendant, if not otherwise faulty, uses the word "supposition" which should have no place in charges. Smith v. State, 197 Ala. 193, 72 So. 316.

The defendant's refused charge H not only singled out one feature of the evidence, but invaded the province of the jury.

Finding no reversible error in the record, the judgment of the circuit court is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur.

On Rehearing.