Deal v. State , 136 Ala. 52 ( 1902 )

SHARPE, J.

Defendant was tried separately on an indictment charging him, and Keahey, and Harman jointly, avItli an assault with intent to murder Hatcher. Evidence for the State tended to show that the three so indicted approached to where Hatcher stood and at the same time attacked him with knives and that defendant cut Hatcher’s neck and each of the others cut his clothes.

For the defense there was evidence tending to show that on the same afternoon hut before the parties met in the cutting affray, Hatcher had cursed defendant and had pursued him with a drawn knife, that shortly thereafter as defendant was passing Hatcher the latter caught defendant in the collar and knocked him to his knees, and that then while Hatcher was on him defendant drew his knife and cut Hatcher.

A witness who had testified that defendant, Keahey and Harman fied after assaulting Hatcher, was against defendant’s objection allowed to testify that one of them went across the street in the direction of a market place. If to render this statement admissible as evidence it was necessary to identify the person so testified about as being the defendant, such identification was furnished by evidence subsequently introduced which tended to show defendant was at that market place a few minutes after the cutting and there said he had cut Hatcher and hoped he had killed him.

Defendant asked one of his Avitnesses Avhat office he tire witness held and who made the arrest. An objection to this question Avas properly sustained. The matter inquired of Avas immaterial.

No predicate having been laid for impeaching Hatcher the court properly refused to allow defendant to prove what statement was made by Hatcher after the difficulty as to who cut him. The proof if made would have been hearsay.

Section 1796 of the Code gave the State 'a right to examine a witness for defendant touching his conviction for crime. The fact that the witness had.been convicted for burning a gin house went to his credibility. Code, § 1795.

The first charge given at the State’s instance was plainly correct.

What the court charged the, jury orally is not shoAvn by the bill of excpetions and therefore it cannot be seen that there was any conflict between the oral charge and the charges given in writing. In the absence of an affir- . mative showing that there was such conflict, the giving of charge 2 for the State cannot be deemed erroneous. Home Protection of North Ala. v. Whidden, 103 Ala. 203; Davis v. State, ante. p. 20.

With a single exception to he hereinafter noted the charges refused to the defendant were each had.

Charge 4 had an undue tendency to withdraw the consideration of the jury from the whole to particular parts of the evidence as going to the creation of a reasonable doubt.

Charge 5 is involved and argumentative. — Amos v. State, 123 Ala. 51.

The only evidence of an attack with a knife made hv Hatcher had relation to a time preceding the difficulty in which the defendant cut him. Charge 7 improperly predicates a right to cut Hatcher in the last difficulty on account of what had occurred in the first.

Charge 8 asserts that “Deal Avas without fault in bringing on the difficulty,” and so unwarrantably proposed to withdraAV from the jury the question of Avhose was the fault.

('’barge 9 is argumentative and gives undue prominence to the conduct of Hatcher as exhibited previous to the cutting.

Charges 10 and 11 Avould each have invaded the jury’s province.

If as the evidence tends to show there was as between defendant and Keahey and Hannan a combó nation of purpose and effort to. cut and murder Hatcher, defendant is responsible for the acts of Keahey and Harmon in carrying' out that purpose as well as for his own acts; hence- the limitation which charge 13 purported to place, on the effect of the evidence having refenence to Keahey and Harman was an improper one.

In view of the whole evidence and especially of that phase of it favoring the defense, the defendant was entitled to have the jury instructed as proposed by charge 12, that-“if the defendant was free from fault in bringing on the difficulty then he was under no duty to retreat unless you believe he could have retreated without increasing his danger or with reasonable safety.” See De Arman v. State, 71 Ala. 351; Bish. New Crim. Law, § 875. The refusal of this charge was error for which the judgment will be reversed.

Reversed and remanded.