Caddell v. State , 136 Ala. 9 ( 1902 )

HARALSON, J.

The objection to the evidence of the witness, Davidson, was general and to the whole of it in mass. If any of 'it was good, as some of it evidently was, the objection ivas bad. — Caddell v. State, 129 Ala. 57. But there appears to have been no exception reserved to the ruling admitting it.

The state proved threats made by defendant against the deceased, his wife, only a few days before the killing. The mother of the deceased, examined by the State, testified that she was with Mrs. Gardner, the alleged paramour of the defendant, who slew deceased, in defendant’s- house at Blocton, and saw acts of undue familiarity between them, and she never heard of defendant and his wife having any trouble until after Mrs. Gardner went to their house. The bill of exceptions following this evidence states: “Objected by defendant, and objection overruled and exempt.” It may be, the last word was intended for ewcept. Granting that the exception was properly reserved, the testimony -was competent as tending to show the feeling of defendant and his paramour against deceased, and the motive that prompted her destruction by the paramour, aided and encouraged, as contended by the state, by the defendant.

That there was no error in admitting the warrant sworn out by deceased -against defendant and Mrs. Gardner, for living in adultery, was decided on the former appeal.

A witness who saw the killing testified, that just before the killing, defendant called Mrs. Gardner out of the room where the shooting occurred, and whispered to her a few words in a short excited tone, when Mrs. Gardner returned to the room where deceased was, and shot hex’, after deceased asked her, if a certain garment was hers. He further stated, that defendant came running iixto the room with his hands up, saying, “Oh Lillie! Oh Lillie! What have you done!” and went to Mrs. Gardner, who by that time had fallen on the floor, and kissing her cheeks, started to go out of the back door of the house, when the witness said to the officer in defendant’s presence, “Hold him or kill him.” To this remark defendant excepted. We find no error here. It was just at the time of the killing, and was a part of the res gestae of his attempted flight, tending to show consciousness of guilt on his paid.

There ivas no error in the refusal of the court to allow the defendant to prove that Mrs. Gardner was, at the time of the trial, an inmate of the Insane Hospi-till. The killing occurred on the 29th day of May, 1899, and this trial was had on the 12th of March, 1902. If it was competent, to show that she ivas insane at the time of the trial, this could not be done by evidence that she was an inmate of the Insane Asylum at the date of the trial.

The part of the oral charge of the court in respect to reasonable doubt, was calculated to confuse and mislead, but its giving, on that account, was not reversible error. — Avery v. State, 124 Ala. 20; Cawley v. State, 133 Ala. 130. Nor was there error in charging that conspiracy need not he proved by direct evidence.

Affi fined.