Fuller v. State , 117 Ala. 36 ( 1897 )

COLEMAN, J.

The defendant was convicted of murder in the second degree, Several exceptions were reserved to the ruling of the court upon the admission of evidence and which are presented for our consideration by appeal. In some instances the same principle of law applies to more than .one exception.. In such cases a decision will be made only upon one .of the exceptions .

The objection that the knife offered in evidence was not sufficiently identified, was properly .overruled. There was evidence tending to show the ownership of the knife and its possession. The weight of the evidence was for the jury. The witness for the prosecution, Sam Teal, prepared a diagram or plat of the place where the homicide occurred. He testified it was practically • correct, and the diagram was admitted, in evidence without objection. Subsequently another witness was examined, with reference- to the position of the parties as shown by the diagram. This witness also stated that he knew the location, and that the diagram ;was practically correct Eefendant objected to his examination relative to the diagram on the grounds that the diagram was neither prepared by the witness nor in his presence, and upon the further ground, that it had not been sufficiently shown that the diagram was correct. Neither ground of objection is tenable, and there was no error in overruling the objection.

The defendant objected to the .statement of a ivitness that he heard the defendant .“cursing.” This objection was properly overruled. On cross-examination, if the defendant had so desired, it was his privilege to have elicited from the witness the precise language used.

The evidence showed that the killing of deceased re-suited from having been cut or stabbed with a knife by the defendant. The difficulty occurred, according to some of the witnesses, between seven and eight o’clock in the morning, by others, about eight; and that he died about 12 o’clock, or between 12 and one o’clock the same day. A witness testified that shortly after the cutting the deceased called for water, and he was raised up and given water, and then fainted or died away. Deceased then requested witness “to put him down, that he was dying.” The solicitor then asked the witness what he said to deceased, and what deceased replied. The defendant objected to what witness said to deceased, on the ground that it was illegal. The witness also testified that he asked deceased about the cutting in defendant’s hat. The defendant objected to this question on the same ground. These objections-were overruled, and the witness testified that deceased replied that “Mr. Fuller cut him to death for nqthing “that he went to loose the mule, and Fuller came up and cut him in the neck;” “that his knife was never open, and that he did not cut Fuller’s hat.” The objection was not put upon the ground that no sufficient predicate had been laid for the admission of dying declarations, or that defendant was not within hearing, but the objection was that the questions and evidence were illegal. Courts are not required to cast about in search of grounds to sustain an objection, and unless the evidence offered is obviously illegal, the objection will not be sustained. We are of opinion that taking all the facts into consideration, the deceased was in that condition of mind that his statements were admissible as dying declarations. The facts show that he had been mortally wounded by being stabbed in the neck and back, that he was bleeding (“the blood came in gushes”) and unable to stand up, and stated that he “was dying,” and the facts show he died from the effects of his wounds in a few hours. The statements of deceased were made within three or four minutes after he had réquested to be laid down, and after his statement “that he was dying.”

The case is distinguishable from that of Justice v. The State, in 99 Ala. 180. There were some expressions of deceased in the latter case indicating that he was impressed with the belief that death was impending, but these expressions were made in connection with others which qualified their force and legal effect, and considered altogether, repelled the conclusion, which authorized their admission as dying declarations. We find nothing of the kind in the statements of deceased in the case under consideration. — Anderson v. The State, 79 Ala. 5; Sullivan v. The State, 102 Ala. 135.

The defendant introduced evidence of his good character. The prosecution being for murder, it was competent in rebuttal to introduce evidence that for peace and quiet, his general character was bad. There was no error in overruling the objection to this evidence.

According to the rule which prevails in this State, the declarations and statements of defendant were voluntarily made and admissible as evidence against him.

A witness who was present and saw the difficulty, testified, “I saw the wound. It was cut with a knife. It seemed as if the knife went in and went backward. That was the appearance of the wound.” The objection to this testimony is, that it is a mere expression of opinion, and not the statement of a fact, and, not being the testimony of an expert, it is objectionable. The witness was merely describing to the jury the wound as it appeared to him. He had just stated that “blood was coming from his neck;” the wound “was cut with a knife.;” “the appearance of the wound was that it went in and went backwards.” The witness was testifying to facts as he saw them. He may not have used very apt woi’ds to convey his meaning, but whatever of obscurity, if any, there was, might have been cleared up by a cross-examination. This was the view of the trial judge, as is manifest from his ruling and statement at the time. If the question was doubtful, we would not feel justified in reversing the case on this point under our present statute. Other witnesses’ testimony as to the number and. character of the wounds inflictfed on the deceased removed all difficulty on this point. Formerly in this State, the same rule as to error without injury applied alike in both criminal and civil cases ; but later decisions Held that in criminal prosecutions when error was shown, a reversal followed, unless it affirmatively appeared, that no injury resulted from the error. Section 4333 of the Code of 1896, recently adopted, reads as follows : “In cases taken to the supreme court under the provisions of this chapter, no assignment of errors, or joinder in errors is necessary ; but the court must consider all questions apparent on the record or reserved by bill of exceptions, and must render such judgment as the law demands. But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant.' ’ If this change in the law is to be given any force, we would not reverse the cause upon the legal exception last considered, because from the other testimony, we are satisfied no injury resulted therefrom to the defendant.

Affirmed: