Pope v. State , 168 Ala. 33 ( 1910 )

ANDERSON, J.

The answer of the witness Williams as to the condition and appearance of the shoes, when he examined them at the coroner’s inquest, was responsive to the question asked by the state and to which there was no objection. The defendant, not having objected' to the question, could not put the trial court in error for failing to exclude the answer. — Downey v. State, 115 Ala. 108, 22 South. 479. Nor must we be understood as holding that the evidence was incompetent bad the question been objected to by the defendant. — Orr v. State, 117 Ala. 69, 23 South. 696.

There was no error in permitting tbe state to show tbe defendant’s inquiries and efforts to procure cotton seed tbe day previous to tbe homicide, as tbe state’s theory was that tbe man who killed tbe deceased was tbe one who burglarized tbe building to get cotton seed.

There was no error in not letting tbe defendant prove by Amos Montgomery what tbe deputy sheriff Eason said to Robert Smart about telling him a lie and putting him in jail. It does not appear that these remarks applied to Montgomery, or could have influenced his testimony, and it was not reoffered after Smart and Ea-son bad testified. It was not competent when excluded, and, if it became relevant after Eason and Arnos Montgomery testified, in order to put tbe trial court in error, it should have been subsequently offered.

There was no error in permitting the state to show that there was a. mill at Oxford and much nearer the defendant than the one in question. Tbe state’s theory was that be did not go to tbe decedent’s mill solely to get meal, but to inspect and clear tbe way to go there that night for cotton seed. And tbe fact that he could have gotten the meal much nearer his home was a circumstance for the jury to determine whether he went to the mill in question solely to get meal or to inspect conditions and surroundings as well.

There was no error in permitting the witness Dodgen to testify that he found a sack of sorghum seed by the side of the road on College Hill. The burglar had been traced in this direction, and there was proof that the building burglarized contained cotton seed, sorghum seed, and feed. Miss Rachel McOlerkin’s testimony, page 15 of the record. Nor was there error in permitting Dodgen to testify that he did not know that defendant was suspeetecl of killing the deceased. It was a circumstance to be considered by the jury as to whether or not these were facts to induce or influence the witness in tracing the tracks to near the defendant’s house.

The fact that the officer who searched the defendant’s, premises and found the shoes had no search warrant did not render the evidence inadmissible. — Shields v. State, 104 Ala. 35, 16 South. 85, 53 Am. St. Rep. 17; Scott v. State, 113 Ala. 64, 21 South. 425; Bacon v. United States, 97 Fed. 35, 38 C. C. A. 37; 25 Am. & Eng. Encyc. Law, 154.

We do not think that the deputy sheriff, Rowland,, was rendered incompetent to testify because at recess or other times he may have had charge of the jury. We think it would be better where an officer is a witness in the case, such as the present one, that he not be put in charge of the jury, but this fact does not render him incompetent as a witness.

There was no error in permitting the witness Murphy to testify where he got the buckles and buttons. He got them from John Draper, who had found them under a pot in defendant’s yard. There was proof that a fire was made under said pot early that morning and, there was a slight inference that the garment from which the buttons and buckles came was burned under said pot to destroy signs of an incriminating character.

There was no error in not permitting the defendant to testify that Dodgen told him that Alonzo Bradford had killed a snake. The appellant insists that, while the defendant could not testify to his motive or purpose in going where Bradford was, the fact that he had been told that Bradford had killed a rattle snake was a question for the jury to determine in ascertaining whether he sought Bradford out for the purpose of persuading him to stay away from the building at night or was caused to stop out of curiosity to see the dead snake. We do not think that the fact that defendant stopped to talk with Bradford was of itself a circumstance against the defendant, or showed that he sought him out or went out of his way to see him. The only purpose of the evidence shown was an effort on defendant’s part, after he stopped, to get Bradford to leave at night, and there was no effort to show that he sought him for that purpose. The proof shows that Bradford was right on the road where defendant was passing, that he saw a wagon coming, and waited there to get on it, and in the meantime got in it. The proof shows that he Avould have presently passed Bradford, whether he knew about the snake or not, and that he stopped there to Avait for a wagon he saw coming and got on it when it got up to them. He did not go out of his way to find Bradford, would have passed right by him anyhow, and defendant says: “I stopped there and waited for a Avagon.”

Charge 8, requested by the defendant, Avas properly refused. If not other Avise bad, it singles out and gives undue prominence to the manner and demeanor of Pope, the defendant. — Stone v. State, 105 Ala. 60, 17 South. 114, 1 Mayfield’s Digest, p. 174.

Charge 9, requested by the defendant, was properly-refused. It was argumentative and gave undue prominence to certain facts.- — Hussey v. State, 86 Ala. 34, 5 South 484. This charge is unlike the oral charge approved by this court in the case of Dolan v. State. 81 Ala. 11, 1 South. 707, and which was given by the court to counteract argument of counsel upon the question of color.

Charge 10, requested by the defendant, was properly refused. This court has repeatedly condemned charges as misleading and confusing which referred to links and chains in the testimony. — Spraggins v. State, 139 Ala. 93, 35 South. 1000; Vaughn v. State, 130 Ala. 18, 30 South. 669; Tompkins v. State, 32 Ala. 569; Wharton v. State, 73 Ala. 367; Grant v. State, 97 Ala. 35, 11 South. 915. Charge 1, approved in the case of Jones v. State, 107 Ala. 93, 18 South. 237, is unlike the present charge. It predicated an acquittal upon a reasonable doubt as to an essential ingredient of the offense. The present charge forbids a conviction, if there is a material missing link necessary to the state’s theory, and not a reasonable doubt as to an essential element or constituent of the offense. Moreover, cases should be tried on facts, and not theories.

Charge 13, requested by the defendant, was properly refused. If not otherwise bad, it was argumentative.

It is true this was a case of circumstantial evidence, but we think the state made out a case to be considered by the jury, and the general charge, requested by the defendant, was therefore properly refused.

The action of the trial court in refusing a new trial is not reviewable in this court.

While we have discussed only the points made in brief of counsel, we are not unmindful of our duty, under the statute, to consider every point disclosed by the record, and have considered each and every one, and find that the action of the trial court was free from reversible error. The judgment of the city court is affirmed.

Affirmed.

Dowdell, O. J., and McClellan and Sayre, JJ., concur.