Campbell v. State , 133 Ala. 81 ( 1901 )

DOWDELL, J.

The defendant set up the plea of self-defense. The evidence was in conflict as fo who was the aggressor. The evidence without dispute showed that the killing occurred at the home of one Pruett, :on the occasion of a public sale, where a good many people were attending; that on said occasion the deceased and one Burrell Messer, who was the father-in-law of the defendant, got into a quarrel, and were at the time near a crib a short distance from the dwelling bouse, and that the defendant was not present at the commencement of the quarrel between Messer and deceased, but came upon the scene later, and while the two were still engaged in the altercation of words, and came from the direction of the dwelling house. One Lovejoy was examined as a witness in behalf of the defendant, and testified, that- witness and def endant were standing near the dwelling house, some distance from where deceased and Messer were, and were engaged in conversation relative to the settlement of a business -matter between witness and the defendant, that from the place where witness and defendant were -standing, witness -could not see Messer and deceased near the crib. The defendant offered to prove by this witness, what he, the defendant, -sai-d, when he started to where Messer- was, near the crib, which was objected to by the State, and the objection was sustained. It was stated to the court wh-at the witness -would testify as to the declaration of the defendant when he started to- where Messer and the -deceased were near the -crib, and where the defendant 'became involved in the difficulty resulting in the death of the deceased, which tended to show that the -defendant started to where Messer wa-s, for the purpose of getting some money changed, with -which to pay a -debt to the witness. It is contended -by -counsel for -defendant, that his going to the scene of the altercation between his father-in-law, Messer, and the deceased, and after the quarrel between the two had begun, being shown in evidence, it was -competent -for him to Show Ms -declarations upon starting, a-s a part of the res gestae of his act in going to where Messer and the deceased were. We think this -contention is sound. Whenever evidence of -an act is in itself competent and admissible as a material fact in the case, and is so admitted, the -declarations accompanying and -characterizing such act become and -form a part of the res gestae of the act, and as such, are competent and admissible in evidence as being explanatory of the act. The sincerity of such declarations, or what weight may- be given to the same, is a question for the jury. .The court erred in exc-luding this testimony. — Harris v. State, 96 Ala. 24; Tesney v. State, 77 Ala. 33; Martin v. State, 77 Ala. 1; Kilgore v. Stanley, 90 Ala. 523; 1 Gr. Ev., § 108; 21 Am. & Eng. Ency. Law (1st ed.), 99.

Other exceptions reserved to the rulings of the court on the admission and exclusion of evidence .are without merit. Moreover, the same are not insisted on in argument.

■ There were a number of written charges requested by the defendant, the greater part of which were given by the court. Of the written charges refused those numbered 1, 4, 15, 23, and 25, only, are insisted on in argument. Charge 1 was properly refused as being argumentative. The i’emaining charges above mentioned are possessed of infirmities rendering them bad, and for which similar charges have been condemned in one or more of the following cases: Gilmore v. State, 126 Ala. 20; Fountain v. State, 98 Ala. 40; Stone v. State, 105 Ala. 60; Roden v. State, 97 Ala. 54; Bondurant v. State, 125 Ala. 31; Compton v. State, 110 Ala. 24. These charges, in postulating, an acquittal upon self-defense, are either faulty in that they are argumentative, or in the omission of some one of the constituent elements of self-defense.

'The charges refused which are not insisted upon in argument, need no comment on their defects.

. For the error pointed out the judgment of the trial court will be reversed and the cause remanded.