Naugher v. State , 116 Ala. 463 ( 1897 )

COLEMAN, J.

The defendant was tried for the murder of Powell Hancock, and convicted of murder in the second degree. Several exceptions were reserved to the rulings of the court upon the admission of evidence.

The defendant did not deny that he- took the life of deceased, but relied upon self-defense for an acquittal. There was evidence that, when drinking, deceased was a dangerous man. Evidence was also introduced that the deceased had recently threatened the life of defendant, which threats were communicated to defendant. The defendant as a witness in his own behalf testified that deceased, with his right hand in or near his hip-pocket, said to defendant, “Damn you, now I’ll get you,” when defendant fired. The defendant was then asked by his counsel, “Whether or not he knew that deceased was in the habit of carrying a pistol concealed in that hip pocket?” The court sustained an objection to this question. In this the court erred. The question was pertinent and relevant, and the answer, if affirmative, tended to throw light upon the circumstances and conditions attending the shooting”. The question was considered in the case of Wiley v. The State, 99 Ala. 146. The credibility of a witness is a question for the jury, and not for the. court.

The statement made by deceased to his sister-in-law, “If he had not been, I would have got him. I had buckshot this time,” if believed, was at least a threat, heard by defendant himself.

¡¡|It wasjnot competent for the State to show that at some previous time, the defendant, while drunk, shot Ms own horse. Such evidence was wholly immaterial as to any issue before the jury, and might have prejudiced the defendant with the jury.

It was competent for the State to show acts of friendly association between defendant and deceased subsequent to the communication of the threats of deceased againt the defendant, and we think it did not transgress the rule to show as a fact that defendant borrowed some meat from deceased ; but there being no competent evidence of the fact of the borrowing, it was not competent for the purpose of impeachment of defendant’s testimony, to ask him if he did not tell “A” that he had borrowed the meat, and on his answering in the negative, to introduce “A” as a witness to prove contradictory statements.

Charge 17 given for the defendant was too favorable. There was no exception to the giving of the charge-, and we merely refer to the fact as a guide on another trial.

Conceding that charge 10 requested by defendant asserted a correct proposition of law, applicable to the case, the defendant got the full benefit of the principle in charge No. 9, which was given at the request of the defendant. •

Charge' 16 requested by defendant, was properly refused. There was other evidence in the cause tending to show that defendant committed the offense besides that of the defendant himself.

We are of opinion that charge 17 requested by defendant was properly refused. It is misleading and argumentative,' and was calculated to give undue prominence to certain specified facts. We are of the further opinion, that' so far as it refers to an absence of motive the charge was abstract. It is not consistent with the defense of justification in self-defense.

For the errors pointed out, the case must be reversed.

Reversed and remanded.