Sanders v. State , 134 Ala. 74 ( 1901 )

DOWDELL, J

The drawing of the names of the jurors, who should constitute: the jury of twelve for the trial of the defendant, was in conformity with the requirement of statute. — Code, § 5009. The failure to put into the box, or substitute therefor, from which the drawing was to be had, the names of those jurors drawn on the special venire, who could niot be. found and therefore were not summoned, and which fact was also shown by the sheriff’s return on the writ, was no ground for quashing the venire, and the court committed no error in. overruling the motion to quash for that cause-.

After testimony by Dr. C. A. Wilkerson, a practicing physician, describing the Avounds inflicted on the defendant, and showing the course and direction of the balls making the wounds, it was not error to- admit evidence of the height of the deceased, it being shown that the wounds on the defendant were received in the. difficulty that resulted in the death of Mullen, for whose killing the defendant ivas on trial.

It is competent for a witness, though a non-expert, to describe a wound which he has seen. The witness being asked by the State, “What Avas the character of that Avound?” answered the question by describing the wound. This involved no opinion of the Avitness as to its character, but a simple description of Avhat he had seen. There Avas no error in overruling the motion to exclude this evidence. The evidence in chief on the part of the State relating to the death of Mullen, the person charged in the indictment to have been murdered, and the connection of the defendant with the killing, was circumstantial. In such cases motive for this deed is a material inquiry, and evidence of motive though sometimes Aveak and inconclusive, if not too remote, is relevant and admissible. Ini connection with the other circumstances shown by the State, tending to connect the defendant with, the killing, it was permissible for the State to show that the deceased had a difficulty Avith the defendant’s brother on the day previous to the day of the killing. — Kelsoe v. State, 47 Ala. 573.

The evidence showed that at the time of the killing the deceased was overseer of a public road, and the defendant was at work as á road hand on the public road under the deceased as such overseer, and the evidence on the part of the defendant tended to show that the killing resulted from an altercation between the defendant and the deceased about the former’s leaving his work, and bringing water in a bucket to the other hands where they were at work to drink. On the cross-examination by the State of the defendant’s Avitness, McLaughlin, the solicitor asked the question: “Had not Mullen given the hands orders not to go after water without his orders?” This question was objected to by the defendant, and the objection being overruled, the witness answered: “Not that I know of, I never heard of such an order.” Even if the court erred in overruling the objection to the question, the answer was favorable to the defendant and consequently no injury resulted to the defendant.

The court properly sustained the State’s objection to the introduction in evidence of an act of the legislature entitled “An act, to. provide the ways and means to establish, open and improve, work and keep in good condition the public roads in Perry county,” approved Februaryll, 1899, offered by the defendant. Such evidence ivas, immaterial and wholly irrelevant to the issues involved.

It was developed upon the cross-examination by the State of some of the defendant’s witnesses that Luke Sanders, the brother of the defendant, took part in the difficulty that resulted in the dentil of Mullen, and that he, Luke, shot several times at; the deceased, emptying his revolver. This being shown by the evidence, it was permissible for the State to show, that after the difficulty on the day previous, the defendant and his brother Luke, came to the road, both armed with pistols, as tending to show a conspiracy. So too1 it was permissible to show in this connection any statement made by the defendant which tended to prove a conspiracy.

The objections to questions and answers in laying the predicates for the impeachment of defendant’s witnesses were without merit and the court committed no error in overruling the same.

There was no error in that portion of the oral charge of the court excepted to by the defendant. That a person cannot invoke the doctrine of self-defense, when he enters willingly into the combat and fights willingly, not for his protection, but to gratify his passion by inflicting injury on his adversary, even though he did not provoke; the difficulty, as a proposition' of law in this State, is beyond question, and that is what the charge asserts.

The written charge given at the request of the State, correctly states the law, and the giviug of, it was free from error.

The successful impeachment of the witness Jack Hartley, did not withdraw his testimony from the consideration of the jury, and for that reason charge A requested by the defendant was bad, and the court properly refused to give it.

Charge No. G requested by the defendant, as an instruction to the jury upon the theory of self-defense is faulty in that it omits to hypothesize an imperious necessity for the defendant to take life at the time he fired upon the deceased. The charge in postulating, an acquittal of the defendant on the facts hypothesized as to the shooting of the deceased by Luke Sanders is also faulty. The jury might have believed that the deceased died fromi the effects of the shots made by both Luke and the defendant. The facts as hypothesized do not exclude the idea, that the deceased died from the effects of the wound given by the defendant as well as from the shot by Luke. Moreover, the charge calls for an acquittal of the defendant when on the facts as postulated the defendant might have been convicted of an assault with intent to murder.

We need only say of charge 7 requested by the defendant that like charges have several times recently been condemned by this court.

Charge No. 10 is faulty in restricting the measure of proof required to convict to that- furnished by the prosecution, instead of to the whole evidence in the case. In this case much of the criminating evidence was furnished by the defense. In the case of Brown v. State, 118 Ala. 111, a charge of which charge 10 is a substantial, if not an exact copy, was pronounced good. But in that case it is not shown that any evidence a.t all was furnished by the defense, and for that reason the charge when referred to the evidence — the only evidence being what was furnished by the prosecution — was pronounced a proper charge.

Charge No. 25 refused to the defendant, is too plainly erroneous to call for comment.

There was evidence, though inconclusive, tending to show a conspiracy between the defendant and Luke Sanders, and for this reason, other charges refused to the defendant invaded the province of the jury, and were therefore properly refused.

Wo find no error in the record, and the judgment of the Circuit Court must be affirmed.