Rose v. State , 144 Ala. 114 ( 1905 )

TYSON, J.

We are of opinion that the dying declarations of the deceased were properly admitted. — Sims v. State, 139 Ala. 74.

•The testimony of the witness, Cowart, was also properly admitted. If the occurrence between him and defendant can be construed as a confession by the latter tending to show that he killed the deceased, the circumstances adduced attending its making show that it was voluntary. On the other hand, if no< confession was involved, the testimony was competent as showing defendant’s proximity to the scene of the crime, recently after its commission, and this is true notwithstanding the evidence showing the killing by him was direct and not circumstantial.

There was clearly no error in sustaining the objection to the question propounded to defendant on direct examination, “Why he left the State and went to Florida,” or to the question “Whether or not his father advised him to go to Florida.” As to the question asked him “To state his financial condition at that time and whether he was able to incur the expense of a murder trial,” it is obvious that the latter part of it'was objectionable upon the ground that it called for the opinion or conclusion of the witness. The court was under no duty to separate, if it be conceded that the first part of it was proper, which it is by no means clear. — Matthews v. Ferrell, 140 Ala. 298, 310. The next question to him was too general. An answer responsive to it, may have been competent or incompetent.

That part of the. oral charge of the court relating to self-defense was unobjectionable. It properly submitted to the jury whether the defendant’s conduct in striking the horse of the deceased Avas calculated to bring on or provoke the difficulty Avhich resulted in the shooting of him by the defendant.

The other portion of the charge, to which an exception was reserved, Avas subject only to the vice of being misleading. This does not constitute a reversible error. Avery v. State, 124 Ala. 20, 22.

Charge 7 Avas properly refused. Without, conceding its correctness in other respects, it was subject to the infirmity of not properly hypothesising freedom from fault on the part of the defndant. The phrase “That the defendant did not provoke or encourage the difficulty” is net the equivalent of freedom from all fault. He may not have provoked or encouraged the difficulty, and yet have Avillingly engaged in it after it had been provoked by the deceased. — Gilmore v. State, 126 Ala. 20, 28.

Charge 11 Avas calculated to mislead the jury to the conclusion that, although they may have believed some of the facts detailed in the dying declaration, they should disregard the whole statement. The cases of Gregg v. State, 106 Ala. 44, and Williams v. State, 114 Ala. 19, have no application to this charge.

Charge 4 is incomplete and unintelligible.

Affirmed.

McClellan, C. J., Simpson and Anderson, JJ., concurring.