McDowell v. State , 238 Ala. 482 ( 1939 )

Appellant was convicted of murder in the second degree, and his punishment fixed at fifty-five years in the penitentiary. He shot deceased with a pistol in an altercation which occurred near the dwelling house of defendant.

Counsel for appellant in brief have referred to only two questions which they consider good grounds for a reversal. One is the refusal to give written charges in substance that defendant was under no duty to retreat. This is upon the theory that he was within the curtilage of his dwelling. The other question goes to an objection to a certain feature of the argument of the solicitor for the State. We will later refer in detail to this contention. We have also examined the record for other questions and find none which need consideration.

With reference to the duty to retreat, we do not understand from the evidence that this killing occurred on the premises of defendant. As we interpret the evidence it occurred in the public road at the entrance to the driveway into the premises of defendant. The witnesses in the main refer to it as on the edge of the road in front of the driveway, or even with it. There was a photograph in evidence showing the location, and some of the evidence related to objects shown on it. It is not before us. In this state of the record we cannot say that it was the duty of the court to charge, certainly without hypothesis, that there was no duty to retreat; or that within the curtilage of the dwelling there is no duty to retreat. We do not know what aid the photograph would be on that subject.

There is nothing apparent in the trial, including the charge of the court, that there was any contention that this occurred on the premises of defendant where he resided so as to relieve him of the duty to retreat. So that we do not think there was error in refusing the two charges in question, which we will number one and fourteen.

The second contention made on behalf of appellant is the objection to an argument by the solicitor for the State as follows: "Don't you know if Earney Bland and Colonel St. John could have gotten witnesses to have proved the defendant's good character, they would have put them on the stand". The bill of exceptions also states that this remark was made in answer to argument of Mr. Bland, attorney for defendant. The defendant had testified as a witness in the case, and thereafter the State had proven by several witnesses that defendant's general character was bad. Defendant did not offer proof that his character was good.

The State's evidence of bad character was only impeaching in its effect and no objection was made to it. Forman v. State,190 Ala. 22, 67 So. 583.

Reliance is had on that line of cases holding that no unfavorable argument of counsel can be made because of the absence of witnesses equally accessible to both parties. 6 Ala.Dig. 583, Criminal Law, 721 1/2. But that principle does not serve to prohibit counsel from commenting on the failure of his adversary to produce evidence of the good character of his witness (especially when he is the witness), when impeaching evidence has been introduced, or when the comment is pertinent to answer an argument made by opposing counsel. Bardin v. State, 143 Ala. 74, 38 So. 833; Nicholson v. State, 149 Ala. 61,42 So. 1015; Martin v. State, 18 Ala. App. 434, 92 So. 913; Earle v. State, 1 Ala. App. 183, 56 So. 32.

The remarks of the solicitor here in question are within that principle.

There is no error in the record which serves to reverse the judgment.

Affirmed.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.

On Rehearing.