Twitty v. State , 168 Ala. 59 ( 1910 )

SIMPSON, J.

The appellant was indicted for murder, and convicted of manslaughter.

The defendant interposed a plea in abatement stating that his true name is William Henry Twitty, and that he was never known by the name of “Wildy Twitty.” The state demurred to said plea because it does not allege that the defendant was not known or called by the name of “Wid Twitty,” or by the name of “W. H. Twitty.” The court properly sustained said demurrer.

. There was no error in sustaining the objection to thé question to the witness Bice Burns as to the reputation of Murphy, the man who was killed, as there was no evidence before the. court raising the question of self-defense.

The predicate was sufficient for admitting the dying declarations, and there was no error in admitting them.—McQueen v. State, 94 Ala. 50, 52, 10 South. 433; Cole v. State, 105 Ala. 76, 81, 16 South. 762.

There was no error in sustaining the objections to the questions to the witness Murphy as to what occurred before the grand jury. This was irrelevant matter to the issues in the case.

The court erred in refusing to allow the defendant to exhibit the scar on his hand. : The witness Twitty had just described the manner in which Murphy, who was afterwards killed, had cut the defendant on his hand, and the defendant was entitled to exhibit to the jury the scar produced by said cutting, in order to show the extent of the injury inflicted on him.

There was no error in refusing to allow defendant to introduce in evidence the indictment for assault with intent to murder which was pending against said Murphy at the time of his death. This was irrelevant to any issue in this case.

There was no error in sustaining the objection to the question to the witness James K. Murphy: “Did not he (deceased) tell you that he was drinking at the time lie was shot?” This was hearsay testimony of a fact, not a part of the res gestae of the killing. — Pulliam v. State, 88 Ala. 1, 6 South. 839; Johnson v. State, 102 Ala. 1, 16 South. 99.

There was no error in sustaining the objection to the statement by the witness McAllister that John Murphy (deceased) had burned a dwelling house belonging to him.

There was no error in sustaining the motion to exclude the statements made by the witness Burns, that one of the Combs boys had a jug of whisky.

There was no error in sustaining the objection to the statement by the witness Burns that James K. Murphy said to his son, “John, whisky is the cause of this,” and John’s reply, “Yes.” This was not a part of. the res gestae of the killing. It was a mere expression of an opinion, and did not show which party it was who was under the influence of whisky. The advice given by the witness Burns to the defendant was irrelevant, and properly excluded.

There was no error in sustaining the objections to.the testimony of Rice Burns with regard to character, as the question is not predicated on a knowledge of the general character of the witness in the community in which he lived.

There was no error in allowing the witness. Weaver to testify as to the general character of Wildy Twitty. The witness stated that he knew his general character and reputation.

There was no error in allowing the state to show that the character of John Murphy was that “he would fight a fair fight.” The defendant had been allowed to prove that he was a dangerous, fighting man.

Charge 12, requested by the defendant, should have .been given. It did not profess to set out the ingredients of self-defense, but dealt only with the question as to whether great bodily harm threatened is equal to life threatened, so as to justify the use of force.

Charge 26 was properly refused, as it left it to the jury to determine what is the meaning of the legal term, “self-defense.”

Charge 14 was properly refused. It does not assert that the “appearance of danger” was to life or great bodily harm, nor that it was such as to reasonably impress a man that such danger existed.

•Charge 29 was properly refused. The charge asserts two propositions: First, that the law gives to'every

one the right to kill in self-defense, where he is not in fault in bringing on the difficulty, which is manifestly bad; and the second clause omits all mention of the duty to retreat.

Charge 34 is argumentative, and was properly refused.

Charge 35 was properly refused.

Charge 4 was properly refused, as charge 3, given by the court, is a substantial copy of it.

Charge 21 is substantially covered by charge 33 given at the request of the defendant, and was properly refused. Besides, it is argumentative.

Charge 15 was properly refused. It substituted “supposed” for “bona fide belief.”

The judgment of the court is reversed, and the cause is remanded.

Dowdell, c. J., and McClellan and Mayfield, JJ., concur.