Webb v. State , 100 Ala. 47 ( 1893 )

COLEMAN, J.

The defendant was convicted of murder in the second degree. After the jury had been selected and sworn, but before the trial was put before them, one of the jurors was excused and discharged on account of sickness, it being shown that he was too ill to sit as a juror. There was no error in this action of the court. The precise question arose in the case of Hawes v. State, 88 Ala. 37. See authorities cited. The defendant moved to quash the venire on the ground that two of the persons drawn to serve as special jurors were not summoned. The evidence showed that one of the persons had left the county, that the sheriff made “ diligent search ” for both of them, and neither could be found in the county. There is no merit in the motion. Gibson v. State, 89 Ala. 121; Arp’s case 97 Ala. 5. The State offered in evidence a written statement voluntarily made by the. defendant on his preliminary trial and which at the time was signed.by him. The ground of objection is, “because a part of Webb's testimony is offered, and not all.” It does not appear from the record, that the part omitted, if any was omitted, related in any manner to the homicide; and in the next place there is no evidence to show that the entire statement was not offered in evidence. The statement is set out in the transcript and seems to be complete in itself. If any part was omitted, there should be some evidence of the omission. The objection itself does not furnish the evidence to sustain it. The State is not required in the first instance to bring out an entire confession or conversation, but if any part is introduced by the State, the defendant is entitled on cross-examination to bring out all that was said at the time, which explained, qualified, or threw any light upon the part introduced by the State. Burns v. State, 49 Ala. 370.

The examination of the sheriff as a witness, although not put under the rule with the other witnesses, was within the discretion of tbe court. We do not see that this discretion was abused in this instance. Charge No. 1, requested by the defendant and refused by the court, was faulty in that it ignored altogether the duty of retreat.— Keith v. State, 97 Ala. 32; Gibson’s case 89 Ala. 121; Holmes’ case (in this volume).

Charge No. 2 is subject to the same objection. Charges 3 and 4 assert incorrect propositions of law and were misleading. A pocket knife may or may not be a deadly weapon. The knife used was introduced in evidence. It is nowhere described. In Nettle’s case, 58 Ala. 268-216, it is said : “We think a knife capable of making a wound two and one-fourth inches deep must be classed as a deadly weapon.” That the knife in the case at bar was sufficient in the hands of the defendant to produce almost immediate death is clearly ? roved. Malice is inferred from the use of a deadly weapon, 'he weapon need not be an unlawful one.

The 5th charge refused was faulty in this, that upon the facts predicated it demanded an acquittal of the defendant, although he may have been at fault in bringing on or provoking the difficulty which resulted in the death of deceased. No person can bring about a necessity to kill another even to save his own life, and then plead the “necessity,” in justification of the homicide. There was evidence tending to show he was not free from fault. Holmes’ case, (in this volume).

There is-no error in the record.

Affirmed.