Rogers v. State , 16 Ala. App. 58 ( 1917 )

The declarations of the deceased a few moments before the homicide deposed to by the witness Browder to the effect that he was going home because he did not want to have trouble with the defendant and his brother "were verbal acts indicating a present purpose and intention," and were properly admitted in evidence, whether they were heard by the defendant or not. Burton v State, 115 Ala. 10, 22 So. 585.

It was not permissible under the res gestæ rule for the defendant to show that deceased, after the shooting, went into the house and reloaded his pistol; nor was the fact that the witness told the defendant of this conduct on the part of the deceased material. Allsup v. State, 15 Ala. App. 121, 72 So. 599; Hickman v. State, 12 Ala. App. 22, 67 So. 775; Smith v. State, 183 Ala. 10, 62 So. 864; Carroll v. State, 130 Ala. 99,30 So. 394; Teague v. State, 144 Ala. 42, 40 So. 312.

While the testimony of Dr. Horn tended to show that the immediate cause of the deceased's death was peritonitis, it also tended to show that this condition was caused by one of the gunshot wounds inflicted on the deceased by the defendant; and the fact that in another case shortly before the death of Will Rogers, the deceased, another patient, died from this malady produced from another cause was wholly immaterial.

It was defendant's right not only to show the general bad character of the witness Browder, but to show his bad character for truth and veracity. Byers v. State, 105 Ala. 31, 16 So. 716. The action of the court in sustaining the solicitor's objection to the question eliciting testimony as to the character of the witness for truth and veracity was, however, error without injury; as immediately following this action of the court this testimony was given without objection. Smith v. State, supra.

The defendant having testified as a witness in his own behalf, his credibility was subject to impeachment as any other witness by showing his general bad character. Smith v. State,197 Ala. 193, 72 So. 316; Brown v. Moon, 196 Ala. 391,72 So. 29; Johnson v. State, 15 Ala. App. 298, 73 So. 210.

The defendant's rights were not impinged by the refusal of the court to limit the inquiry to his character for truth and veracity. Walling v. State, 15 Ala. App. 275, 73 So. 216.

The right of the defendant to require that the testimony for impeachment of his veracity be limited to the inquiry of his bad character for truth and veracity is limited to cases where the accused has put in issue his good character as exculpatory evidence and after he testifies as a witness the state undertakes to impeach his character for truth and veracity. The reason for this is stated in Mitchell v. State, 14 Ala. App. 46,70 So. 991, and Smith v. State, 197 Ala. 193, 72 So. 316.

The question of the solicitor, "Mr. Powell, ask if you would say that a man against whom you had heard these things reported was a man of good character; you know as a matter of fact that this man didn't steal that mule, don't you?" was double and leading, and the later part of the question was improper; but the objection to the question was general and was not interposed until after the answer was given, and the overruling of the objection does not constitute reversible error. Lewis v. State, 121 Ala. 1, 25 So. 1017; Hudson v. State, 137 Ala. 60,34 So. 854. The record further shows that on recross-examination he did not say that as a matter of fact the witness Browder did not steal the mule, clearly showing that he only intended his answer as a response to the first part of the question, and no injury is shown.

The testimony of the witness Thompson shows that the only knowledge he had of the defendant's character was from his personal observations of and dealings with the defendant; and it was not error for the court to reject his testimony as to the defendant's character for truth. Andrews v. State, 159 Ala. 14,48 So. 858.

The record does not affirmatively show that the solicitor made the statement, "If verdicts in the past had been proper, this would not have occurred," but merely shows that the defendant moved to exclude such a remark and the motion was overruled. The motion, for all the record shows, might have been overruled because no such remark was made. The burden is upon the appellant to affirmatively show error. Smith v. State,183 Ala. 10, 62 So. 864. If, however, it should be conceded that such a remark was made, it is not the statement of a fact, but a mere conclusion; and the charges given at the instance of the defendant marked Al and B1 cured the error, if any. Jefferson v. State, 110 Ala. 89, 20 So. 434.

Refused charges A1, E, and F were properly refused as invasive of the province of the jury.

Charge G refused to the defendant meets the objection pointed to charge 2 in Langham v. State, 12 Ala. App. 46, 68 So. 504, but pretermits the defendant's duty to retreat if by so doing he could remove the necessity to take life. Brewer v. State, 160 Ala. 66, 49 So. 336. See, also, Harris v. State,96 Ala. 24, 11 So. 255.

Charge M was faulty in not stating that the circumstances surrounding the defendant at the time the fatal shot was fired were such as to impress a reasonable man that he was in impending danger of losing his life or suffering grievous harm.

Refused charge 6 was substantially covered by the special charges given at the defendant's instance.

We find no error in the record, and the judgment is affirmed.

Affirmed.

BRICKEN, J., not sitting, having been of counsel.