May v. State , 167 Ala. 36 ( 1910 )

SAYBE, J.

The homicide for which defendant was on trial occurred in the presence of a number of witnesses. There was evidence on behalf of the defendant which tended to show a case of self-defense. The trial judge admitted evidence of threats said to have been made by the deceased against the defendant on various occasions. A number of exceptions were reserved to those rulings of the court which denied defendant’s offers to show circumstances not a part of the res gasüb nor amounting to threats, but in our judgment they hardly call for extensive treatment. Statements said to have been made by the deceased about the defendant at odd times, remote from the killing, to the effect that defendant was a coward and would not fight, and the fact that deceased used bad language and cursed when referring to defendant, did not amount to threats, had no tendency to illustrate the conduct of the deceased at the time of the homicide, and were excluded without error.

Defendant had testified to several difficulties with the deceased, and to threats made against him by deceased of which he had been informed. It appeared that some time before the fatal encounter there had been a trial of a civil cause before a justice of the peace. Defendant testified that he knew nothing of the facts of that case, and had not attended the trial. He further testified that one Mr. Wilkes had told him that deceased had said that there were nine of them at the trial, and, if defendant had been there, they would have fixed him. Defendant sought by a series of questions to be permitted to testify that deceased had summoned him to attend that trial, or that deceased had come to his house with a number of others, and represented to him that his presence at the trial was desired, or that deceased had come to his house late at night to get him to attend the trial, or that just before the trial deceased came to his house and knocked on the door, and that when thereupon he had left his house and gone down into a corner of the fence near the road, he had heard deceased say what they would do if he had been there. After the state’s objections to these questions had been sustained, the defendant testified without objection in these words: “On the night last referred to, when said parties knocked at my door, it was pretty late — I think about 11 o’clock. I was awakened by the knock. I left the house, went down through the garden, and up through the orchard. I saw five men pass by. I could not tell who any of them were except Grover Patterson. I knew him. I heard him talking about me not being at home, and. they said they did not think I was there, and if I was, Patterson said, I was hard to wake. I heard Patterson say in that conversation : £I am sorry he is not there. If he was we would fix his clock.’ ” Defendant’s counsel then asked this question : “How long did Patterson and those other persons remain around your place?” Objection to this question was sustained. Exceptions were reserved to the several rulings indicated. It is clear enough that the act of deceased in summoning defendant as a witness or tlie mere effort to induce his attendance on the trial, which the defendant sought to show by the first several of the questions, did not in itself constitute a threat. It is said, however, that the attempt to get defendant to a place where it had been planned to fix —to kill — him, would have given meaning to the threat testified to by Wilkes. But the alleged threat was no threat. It was nothing more than a statement by the deceased of what he would have done in an event which had not happened. Nor was there evidence that the deceased had planned to kill defendant at the trial. It requires conjecture on conjecture to inject hostile meaning into the mere act of summoning or requesting the presence of'defendant as a witness. The objection to the question as to the length of time Patterson and others remained around the defendant’s place, we suppose, was sustained on the authority of Harkness v. State, 129 Ala. 71, 30 South. 73. The doctrine of that case was soon reaffirmed in Willingham v. State, 130 Ala. 35, 30 South. 429. We are not disposed to overrule those cases. The proposition that no consideration of convenience or inconvenience should have weight where life or liberty is at stake, is too comprehensive for practical purposes in the administration of justice. It is important, among other things, that cases, though involving life and liberty, be tried, and that the minds of the jury be not diverted from the merits of the case being tried by laying before them the details and merits of another. — McAnally v. State, 74 Ala. 9. Nor did the occasion in question present the features of a threat by laying in wait, as was the case in Gunter v. State, 111 Ala. 23, 20 South. 632, 56 Am. St. Rep. 17, nor such preparation for an attack as was shoAvn in Linehan v. State, 113 Ala. 70, 21 South. 497. On due consideration we think the defendant had the advantage of every fact to which he was entitled, and that there was no error here.

The same disposition must be made of those offers on the part of defendant to show that, on the occasion of several difficulties between him and deceased, the latter had charged defendant with interfering with an unlawful traffic in whisky, in which, on the hypothesis of the questions, deceased was engaged. These questions plainly called for the details of these previous difficulties.

There was evidence for the state tending to show that, immediately before the encounter in which Patterson lost his life, defendant had the pistol with which the killing was done concealed under the seat of his buggy. Defendant, as a witness, was asked by his counsel to state whether at that time and prior thereto threats had been made against his life. The defendant answered: “It had been so reported to me — been communicated to me that my- life had been threatened.” Appellant contends that there was error in sustaining objection to this question and the motion to exclude the answer for the reason that the evidence tended to show that defendant had reason to apprehend an attack, and thus to break the force of the suggestion of preparation carried hv the state’s evidence'in respect to having the pistol concealed. The record does not disclose the grounds upon which the court proceeded. Any tenable ground will justify the ruling. The court allowed every offer to prove specific threats. If it be conceded that, in view of the testimony offered by the state on this point, evidence of threats was admissible to explain defendant’s having a pistol, evidence of these threats ought to have been given in such form as to afford the state an opportunity for rebuttal — the occasions should have been specified. What defendant expected to prove might have been developed by proper questions. As it was, the question was a fishing question. The answer was too general. — Prince v. State, 100 Ala. 144, 14 South. 409, 46 Am. St. Rep. 28.

An objection was sustained to this question put to the defendant. ‘Did the voices of those that y.ou heard down the road (referred to the party of several in the wagon with the deceased) appear — sound to you as if coming from drunken men?” Immediately thereafter the defendant was allowed without objection to testify in this language: “I heard the hallowing before I saw the men, and it was my judgment that they were drinking.” A witness may testify that a person is drunk or drinking. — Jones on Evidence, § 360, and note with citation of authorities. It is urged that there is a wide difference between drinking and drunkenness, and that there was error which was not cured. There are degrees of intoxication. And it may be conceded that “drunk,” as used in the vernacular, signifies a deeper degree than “drinking,” If so, it still does not appear that there was error, for in strictness the question put did not ask for defendant’s judgment as to whether the party in the wagon were drunk, but only whether the sounds were such as would come from drunken men— an inadequate basis for a judgment of drunkenness. Brit, however this may be, the question as to the degree of indulgence by the party in the wagon was the subject of elaborate examination. Apart from the opinion thus sought to he developed, the jury were in possession of every fact essential to a correct conclusion, including defendant’s judgment that the party was drinking. It is not to be conceived in reason that the opinion called for would have influenced the jury to a verdict in any respect different from that rendered. On the contrary, we are satisfied that no injury resulted to the defendant from its exclusion, and that there was no reversible error.

It seems evident that the witness Gresham could not have testified, as of his own knowledge, for what purpose the state had caused him to be subpoenaed as a witness, and that there was no error in refusing to permit him to make the effort.

Charge 11, refused to the defendant, ignored the duty of retreat.

Charge 14 assumed that the evidence of defendant’s guilt was of an unsatisfactory character.

Charge 15 laid undue stress upon specified features of the evidence.

The general charge was manifestly erroneous.

After a consideration of the entire record we are of the opinion that no reversible error affected the defendant’s trial and conviction, and, in consequence, that the judgment must be affirmed.

Affirmed.

Dowdell, C. J., and Anderson and McClellan, JJ., concur.