White v. State , 20 Ala. App. 213 ( 1924 )

Defendant was indicted for murder in the first degree, and convicted of murder in the second degree.

The evidence for the state tended to show that early on a Saturday night during the month of May, 1923, the deceased (Morris Edwards) was at the house of one Martha Fulford, defendant's mother-in-law, and was preparing to leave when defendant arrived, raised and fired a single-barrel shotgun, followed after deceased, and struck him over the head with the barrel of his gun. The deceased died several days later.

The evidence for the defendant tended to show that improper relations had existed between deceased and defendant's wife. Defendant testified that just before the fatal difficulty he detected his wife and deceased in a compromising position; that as soon as he saw them, the deceased ran towards him, and he (defendant) struck deceased over the head with his gun.

George Burns, witness for defendant, testified that about 9 o'clock of the morning before the night of the fatal difficulty he met defendant on the road between Burnsville and Selma. This question was asked witness on direct examination: "Did he ask you about Florence?" State's objection to this question was sustained, and defendant excepted. Witness was then asked; "Did you tell Elliott White that Florence was sick?" Objection of state to this question was also sustained, and an exception was reserved. Both of these questions called for hearsay evidence. Neither of them elicited testimony as to where defendant was going, and his object in going. Clearly neither of them fall within the rule that the concurrent declarations of one setting out on a journey, explanatory of the object he has in view, may be shown as a part of the res gestæ. Hill v. State, 210 Ala. 221,97 So. 639; Spelce et al. v. State, post, p. 412, 103 So. 694.

Dr. W.W. Harper, witness for the state, testified that a negro was brought to him by Dr. C. Gale; that this negro was suffering from a fractured skull, caused by being struck with some solid substance like wood or iron; and that this negro died as a result of such injury. Motion to exclude the testimony of this witness was made on the ground that the negro was not shown to be the one alleged to have been killed (Morris Edwards). An examination of the evidence shows that the witness was asked: "Did you ever attend a negro man named Morris Edwards?" The witness answered as follows: "Is that the negro Dr. Gale brought in?" "Yes, sir." The testimony of Dr. C. Gale, that he examined Morris Edwards, discovered that he had a fractured skull, carried him to Dr. W.W. Harper, and that was the only case of the kind that he had carried to Dr. Harper, sufficiently identifies the negro referred to by Dr. Harper as the negro alleged in the indictment to have been killed.

No grounds were assigned for the motion to exclude the statement of the witness Charlie Goldsby, "We carried him to Dr. Cale, or Dr. Gale, or something like that," and this statement might have been given in response to a question calling directly for it, to which no objection was interposed. An objection to the question propounded should be shown. Dowling v. State, 151 Ala. 131,44 So. 403; Bone v. State, 8 Ala. App. 59, 62 So. 455.

Dock Fulford, witness for the state, was asked on direct examination:

"Did he [defendant] come up there on one occasion, after the separation took place and before this difficulty took place, and tell your sister in your presence that he had another woman, and she just as well get her another man?"

Defendant's objection to the question was overruled, and an exception reserved. However, no motion was made to exclude the answer to the question. In the absence of a motion to exclude the answer, there is nothing presented for review. Rector v. State,11 Ala. App. 333, 66 So. 857; Johnson v. State, 4 Ala. App. 62,58 So. 754.

Charge 14 was fairly and substantially covered by the court's oral charge to the jury.

Charge 13 is faulty. By the use of the double negative, it places the burden of negativing irresponsibility upon the state, and it is misleading.

Charge 15 is also bad, in that it places the burden of proving sanity upon the state, contrary to the provision of section 7175 of the Code of 1907. The law on this point was correctly stated in the oral charge of the court.

Charge 16 does not state the law with reference to self-defense correctly. It omits "imminent peril," an essential element of self-defense. Furthermore, except in exceptional cases, of which the instant case is not an example, one is not excused for taking human life, if he could retire from the combat without increasing his peril. Morrison v. State, 84 Ala. 405, 4 So. 402; Underwood v. State, 179 Ala. 9, 60 So. 842.

Charge B was substantially covered by given charge A.

Charge 11 (also lettered C) was abstract, and properly refused. There was no evidence of any threat having been made by deceased against the defendant.

The request for the affirmative charge on the ground that the venue had not been proven was not sustained by the testimony. The witness Nora White testified: "The place where that shooting occurred was in Dallas county." The court judicially knows, if the offense took place in Dallas county, it took place within the jurisdiction of the circuit court of Dallas county.

There is no error in the record, and the judgment of the circuit court is affirmed.

Affirmed.