Simmons v. State , 145 Ala. 61 ( 1906 )

HARALSON, J.

What tlie words, “to exclude same from the jury,” referred to, whether to all the witness Reynolds luul just deposed to, or to only the paid, “the defendant, had a pistol,” is not clear; but whether a part or to all that the witness had stated, there was no error in overiuling the motion to exclude1, since the («tatement was a part of the ri s gesta1 of the occurrence. The declaration of Reynolds was made in the presence of defendant and on what ground the motion was predicated is not shown. — Martin v. State, 77 Ala. 2 ; Campbell v. State, 133 Ala. 81, 31 South. 802, 91 Am. St. Rep. 17.

Gant, a witness for the State, testified, that on tlie morning the offense occurred, he was riding on the calmóse of the. train and that Ilanev Brockman came back and told him that the defendant was on the engine with a big- pistol and the engineer desired him to come and aid in putting him off the engine. The solicitor asked Gant what Ilanev Brockman told witness at the caboose Tire bill of exeexitions states, at this point, that tin1 defendant had brought out on the cross-examination a portiou of ihe conversation between Gant- and Ilane.y Brock-man at the caboose, and tin1 State was then calling for the balance of it. The defendant having called for a jm-t of the conversation, the State was entitled to all of it. Drake v. State, 110 Ala. 9, 20 South. 450 ; Williams v. State, 103 Ala. 33, 15 South. 662.

Upon a- careful consideration of the. undisx>ted -evidence, we art1- unable, to find, in the conduct of the defendant; such an attempt to carry out an intention to murder, if such an intention -existed, as would justify his conviction of the high grade of felony charged in the- indictment. The court erred, therefore, in refusing to give charge No: 1, requested by defendant.

The remaining charges requested by him, numbered 2, 3 and 4, were properly refused as being argumentative, misleading or abstract. Conceding all they postulate, the. defendant may have been guilty as charged.

Reversed and remanded.

Weakley, C. 4., and Dowdell and Denson, 4J., concur.