Clemmons v. State , 18 Ala. App. 650 ( 1922 )

Charges 4 and 6, refused to defendant, omit the elements of self-defense, and for that reason, if no other, were properly refused. Moreover, the principles of law attempted to be stated in the charges were fully and correctly covered by written charges given at the request of defendant and by the court in its oral charge.

Charge 9 was an argument.

Charge 11 was the general charge, and, as there was ample evidence to sustain the verdict, the charge was properly refused.

Charge BB, was invasive of the province of the jury. It was a question for the jury to say, from all the evidence, whose gun it was that defendant used in committing the homicide.

The rulings of the court on the admission of evidence as to what took place between the defendant and a third party, at a different time and place, were manifestly free from error, and testimony as to a difficulty between defendant and a third party was also properly excluded.

It is insisted in brief of counsel that the court "continuously throughout the record consistently refused to allow defendant to prove that the gun which he was refusing to surrender to Dalton Johnson was his own shotgun, and not that of Dalton Johnson," and they add by way of comment, "This was horribly and palpably erroneous."

The record does not bear out this statement. The state did not undertake to prove that the shotgun then in the possession of defendant was the property of Dalton Johnson, Clara Hill, a state's witness, saying, "I don't know whose gun it was." Turner Hill, another state's witness, said, "I don't know whether it was a single or double barrel gun." Henry Hill, another state's witness, said: "I reckon he had Dalton's gun; I don't know whether he did or not; he had had it." This being all the testimony for the state on that question, defendant was permitted to testify, without objection, "when I left home after the trouble, I carried my gun," and again, "The gun I took with me when I went to Squire Lyles was my own gun." So, if the evidence is important, the defendant had full benefit of it without dispute, and all of those question asked with reference to another gun, were clearly for the purpose of getting into the evidence the details of another difficulty between Henry Hill and defendant at another time and place, and the rulings of the trial court in this regard were free from error.

During the redirect examination of the defendant's wife, testifying for defendant, in answer to a question, she replied, "He [defendant] had started to Squire Lyles." This answer was excluded on motion of the solicitor, but this action of the court could not constitute prejudicial error for the reason that the same witness had testified without objection that "he [defendant] was going over to Mr. Lyles and from Mr. Lyles back home." Therefore, if the testimony was material, the defendant already had the benefit of a statement more explicit than the answer excluded.

The defendant offered to prove by the defendant while he was being examined as a witness that he had been wounded that afternoon and had started to Squire Lyles to get a warrant.

In the absence of any testimony tending to connect the dead man with the defendant's wound, or any evidence tending to show that defendant connected him with it, or any evidence tending to prove a conspiracy or flight on the part of the defendant, or any evidence tending to show that the presence of defendant along the road was with the purpose or intention of provoking a difficulty with the dead man, the testimony offered was illegal and irrelevant. The cases of Pearce v. State, 4 Ala. App. 32,58 So. 996, Bailey v. State, 4 Ala. App. 7,58 So. 675, and other cases of similar import are not in point, all of the cases in line with the cases cited being cases where the place at which the defendant was tended to prove the guilt of the defendant.

A reading of the record discloses that the case was ably and carefully tried, and on the trial the defendant was given every right to which he was entitled under the law, resulting in a verdict in which "mercy tempers justice." We find no error in the record. Let the judgment be affirmed.

Affirmed.