Bailey v. State , 11 Ala. App. 8 ( 1914 )

PELHAM, J.

This is the second appeal in this case. —Bailey v. State, 4 Ala. App. 7, 58 South 675.

The evidence set out in the bill of exceptions on this appeal shows the affair to have been one continuous transaction from the time the dispute arose, or difficulty occurred, at or near the church, until the fatal re-encounter occurred in the public road- a short time afterwards; and the court was not in error in permitting the state to introduce in evidence the particulars of the difficulty that took place at the church. Nor was it error to allow the state to- show, by the doctor who examined the deceased a short time after the killing, the extent and nature of the wounds on the body of the deceased, whether they were inflicted as gunshot or pistol shot wounds. It does not follow that, because the indictment avers that the deceased came to his death by having been shot with a pistol, the state is precluded from showing, by a doctor who examined the body of the deceased immediately after the killing, and who is shown to be an expert, the nature and extent of the wounds found upon the body inflicted by other means than a pistol shot. It was for the jury to say, after hearing all the evidence on this subject, whether the bullet wounds testified to by the physician and other witnesses were produced by shots fired from a pistol or some other firearm. — Eaton v. State, 8 Ala. App. 136, 63 South. 41.

The court was in error in refusing to permit the defendant to show by the witness Nat Johnson that the defendant and his- family were in his (defendant’s) house at the time the deceased was using the highly insulting, threatening, and obscene language testified to by some of the witnesses. This was in point of time (just prior to the killing, and was clearly a part of the res gestse, and had a tendency to afford some explanation of the conduct of the parties. No objection is shown to have been made to the question eliciting the testimony from the witness George Johnson to the effect that he went to Clarke county after having been convicted of an offense and then came back, but only a motion to exclude the answer after it Avas made is shown. Such an objection to evidence is not reviewable on appeal.— Hooper v. Dorsey, 5 Ala. App. 463, 58 South. 951.

There Avas sufficient evidence before the jury to warrant a finding of the existence of a conspiracy, and the court properly refused the defendant’s requested charges excluding a consideration of that question from the jury. It is not indispensable in showing a conspiracy that the evidence should show its existence at any definite time prior to the doing of the act. It may have arisen on the spur of the moment, and it is not essential that it be shown by positive testimony; its existence may he inferred from all the attendant circumstances accompanying and immediately following the doing of the act. — Jones’ Case, 174 Ala. 53, 57 South. 31; Tanner’s Case, 92 Ala. 1, 9 South. 613; Williams’ Case, 81 Ala. 4, 1 South. 179, 60 Am. Rep. 133; Martin’s Case, 89 Ala. 115, 8 South. 23, 18 Am. St. Rep. 91; Gibson’s Case, 89 Ala. 121, 8 South. 98, 18 Am. St. Rep. 96; Elmore’s Case, 110 Ala. 63, 20 South. 323; Evans’ Case, 109 Ala. 13, 19 South. 535; Johnson’s Case, 29 Ala. 62, 65 Am. Dec. 383; Scott’s Case, 30 Ala. 503; Buford’s Case, 132 Ala. 6, 31 South. 714; Morris’ Case, 146 Ala. 66, 41 South. 274.

The proof showed that the defendant was in the public road some hundred yards or more from his home at the time the hilling occurred, and those charges assuming or predicated upon the defendant’s being within the curtilage of his home when the fatal shot was fired, and under no duty to retreat, were properly refused. See Hubbard v. State, 10 Ala. App. 47, 64 South. 633.

Charge No. 15 in Twitty’s Case, 168 Ala. 59, 53 South. 308, was criticized for substituting “supposed” for “bona fide belief.” Charge No. 3 in the case at bar is in the same language as charge No. 15 in Twitty’s-Case, except that it meets the criticism directed at the charge in that case by substituting “honestly believe” for the word “suppose” as it appears in the charge in that case.

The Supreme Court has held charge No. 12. refused to the defendant to be a good charge that should be given. It is the same charge passed on as charge No. 12 in Twitty v. State, 168 Ala. 59, 53 South. 308. It is not abstract as applied to the evidence in this case, nor covered by any of the given charges. Its refusal was-error.

Refused charge No. 11 pretermits the requirement for retreat contained in a somewhat similar charge approved in.Bluitt's Case, 161 Ala. 14, 49 South. 854.

It will be seen from the foregoing discussion of the case that, for the errors committed on the trial that we have pointed out, a reversal must necessarily be ordered, and we do not deem a more extended discussion' of the case necessary or beneficial. What has been said will be a sufficient guide to the court below on another trial so far as any question presented on this record is concerned.

Reversed and remanded.