Thomas v. State , 103 Ala. 18 ( 1893 )

HARALSON, J.

1. The State introduced in rebuttal a witness who testified, among other things, that he was in the hall the night Atkins was killed by the defendant, and was about 22 or 23 feet from the. parties, and that they were about 10 feet, or perhaps a little more than that, apart from each other. The object of this evidence was, evidently, to show, that for any thing the deceased was doing or could do, at the time, to injure defendant, he had no excuse for killing him. This witness, it appears, had been examined before the trial justice on the preliminary examination. With the view of showing that his statement, first made, as to the position of the parties, when deceased was shot by defendant, was inconsistent with what he swore on the preliminary trial, the defendant proposed to examine him and the court allowed it, touching his statements before the justice. He stated that he there swore, that Atkins approached Thomas with a chair, and was in a striking position when Thomas shot him, and that this was the truth ; that Atkins advanced on Thomas with a chair and Thomas was retreating from him. The defendant propounded the question : c< Did you swear as a witness in this case, before justice Thrower, that Atkins approached Thomas with a chair, and was in a striking position when Thomas shot?” The solicitor objected to the question on the ground, ‘ ‘that the examination was in rebuttal, and the defendant could not introduce witnesses to contradict'. ’ ’ The ruling of the court on this question is stated to-have been, “that it was competent to show, that the witness had made two different statements.” The witness answered that he had so sworn before the justice, aud started to make a further explanation of what he swore, when defendant’s counsel interposed an objection to the witness making any further statement. The evidence was certainly competent, as the jury might draw inferences from the two statements, unfavorable to the credibility of the witness in the evidence he was then giving. Defendant, at this point, objected to the witness making any further statement in reference to his testimony before the justice. But, the court ruled as the bill of exceptions states, “that the witness might explain, if he could.” It was then added : “The witness then swore, I said before Thrower, that Atkins approached Thomas with a chair and was in a striking position, and this was the truth; * * that Atkins had the chair in.the attitude of striking, and that Thomas pulled his pistol and made one or two steps towards Atkins and fired.” The statement then follows : “The court ruled out all what the witness had testified before the justice on the preliminary examination.” The defendant objected to this, the objection was overruled, and the defendant excepted. It thus appears that all the evidence of this witness touching his statements before the justice, including that called out and properly admitted at the instance of the defendant, as well as that admitted after the defendant objected to any further statement by the witness, which the court again properly, ruled he might make by way of explanation of any seeming conflict in his evidence on the two occasions, was excluded by the court of its own motion, and against the objection of defendant. In this the court erred.

2. The charges requested by the defendant were each properly refused; the ones numbered 52, 53, 56 and 57, and the one marked B, in that they required the court to pass upon matters, which, under the evidence, were properly determinable by the jury; and the last, for the further reason, that it is argumentative ; 54, because it required the court to pass on the weight of the evidence; and the one marked A, for that it is argumentative, misleading,'and ignores the doctrine of retreat. The remaining one, marked G, has been repeatedly held to be erroneous. — Carpenter v. The State, 98 Ala. 31; Fonville v. The State, 91 Ala. 40 ; Gibson v. The State, Ib. 64.

For the single error indicated, the judgment of the city court must be reversed.

Reversed and remanded.