Autrey v. State , 190 Ala. 10 ( 1914 )

SOMERVILLE, J.—

(1) The motion to quash the special venire on the ground of discrepancies between the original venire and the copy served on the defendant was without merit. — Jury Act of Aug. 31, 1909. § 29; Bell v. State, 115 Ala. 25, 22 South. 526.

(2) It sufficiently appeared that the declarations of the deceased, as testified to by the witnesses for the state, were made under a sense of impending dissolution, and the objections based upon the insufficiency of the predicate were properly overruled.

(3, 4) The deceased’s declaration to Dr. Pugh, that there was “no cause’’ for the killing, was obviously relevant; and, if objectionable at all, it was objectionable only because it was a conclusion of the witness. No such objection was made, and the grounds assigned were inapt.

(5, 6) One Stewart, a witness for the state, was allowed to testify to the declaration of deceased that defendant “had willfully murdered him, and he hoped that the good people of Clarke county would see that he was dealt with justly, according to the crime he had committed.” It is obvious that this statement contains matter that is outside the scope of a dying declaration, which should be limited to the facts and circumstances of the killing. However, the objection to its admission was to the statement as a whole, and only on the ground of an insufficient predicate, and, as this ground was without merit in fact, and the first part of the statement was relevant, the objection was properly overruled.

(7) Defendant’s witness McMullen testified to a conversation with, deceased at Grove Hill the year before which indicated the existence of trouble between deceased and defendant. The witness was asked if deceased told him what he (deceased) was up there for; and upon his answering, “Yes,” he was then asked to state what deceased said. In the absence of a showing that wh.at deceased said was in some way relevant to the issues of the case, the exclusion of this question by the trial court cannot be pronounced erroneous.— B. R., L. & P. Co. v. Barrett, 179 Ala. 274, 60 South. 262, and cases cited.

(8) It was not competent for defendant to show threats by deceased, nor the bad character of deceased for peace and quietude, in the absence of any evidence tending to show that the killing was in self-defense. At the time defendant offered his showings for absent witneses, containing evidence of threats and bad character, there was no evidence before the court tending to show self-defense and the state’s objection was properly taken and sustained. The entire showings for the witnesses Chapman and Davis were properly excluded; and the entire showing for the witness Morgan might well have been excluded, instead of only a portion of it.

(9, 10) The only competent and relevant matter contained in the showing for the witness Bumpers is the statement that the defendant’s character and general reputation in the community where he lives is good. But if the entire showing was excluded, as seems to be assumed by defendant’s counsel, that action was manifestly erroneous. However, while the bill of exceptions shows a remark by the trial judge that he thought the showing as a whole was bad, it does not appear that any ruling of exclusion was made; and, as the record stands, we are bound to presume that the showing was not excluded. Defendant afterwards asked leave to make a change in the wording of the showing. Without the consent of the solicitor for the state, it is clear that defendant had no right to change the showing as originally agreed to and admitted by the state.

(11) It was not competent for defendant to state that he did not get out of the buggy for the purpose of fighting deceased, nor that deceased had once “attempted to cut his (defendant’s) throat,” nor that defendant had dodged or avoided deceased at various times and places.

A careful scrutiny of the record discloses no error in the ruling’s of the trial court, and the judgment must be affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Gardner, JJ., concur.