Heard v. State , 17 Ala. App. 639 ( 1921 )

The appellant was indicted for and convicted of murder in the second degree, and the jury fixed his punishment at 10 years' imprisonment in the penitentiary.

The evidence shows that the defendant and four other persons were present at the time of the homicide, and that defendant, deceased, and another were engaged in gambling at cards; that a dispute arose over a 25-cent piece, and as a result defendant shot and killed one Fate Sullivan. The evidence tends to indicate that the defendant threw this coin down for the purpose of betting it, and that deceased picked it up; that defendant told deceased to put the quarter down, and deceased refused; that defendant at this juncture shot deceased, after deceased, according to some of the evidence, made a motion as if to draw a gun, or did actually draw the gun and shot at defendant.

Only one exception was reserved during the taking of the testimony. Jack Nelson testified as to who was present at the time of the shooting and that they were gambling. The solicitor then asked the witness, "Were all those people you just named in the game?" To this question the defendant's counsel objected. This was clearly a part of the res gestæ and was admissible. The affirmative charge was refused to the defendant.

There was evidence warranting a conviction, and, this being true, the charge was properly refused. Holyfield v. State,82 So. 652.¹ Refused written charge 7 was properly refused for the reason that it predicated a verdict of not guilty upon a finding of self-defense without defining self-defense. Garth v. State, 8 Ala. App. 23, 62 So. 383.

Refused charge 8 was properly refused, as it invaded the province of the jury. Crumpton v. State, 167 Ala. 4, 52 So. 605.

It does not appear from the record what, if any, evidence was offered in support of the motion for a new trial, and it was properly overruled. Crawley v. State, 16 Ala. App. 545,79 So. 804.

There being no error in the record, the judgment of conviction is affirmed.

Affirmed.

¹ Ante, p. 162.