Ferguson v. State , 21 Ala. App. 116 ( 1925 )

The defendant was indicted and tried for murder in the first degree. The jury found defendant guilty of manslaughter in the first degree, and he was sentenced to the penitentiary for a period of five years.

The only question arising with respect to the testimony arose on the cross-examination of the state witness, Ferrell McKee. The defendant asked the witness this question: "Did you know whether or not Mr. Toone was drinking at that time?" The court erred in sustaining objection to this question. The witness had testified to facts tending to show that the act of the defendant was defensive, and, where such is the case, the condition of the deceased as to intoxication is material. Neilson v. State, 40 So. 221;¹ Barden v. State, 145 Ala. 1, 40 So. 948; Wharton's Crim. Ev. vol. 11, p. 1757 (10th Ed.); Harrell v. State, 166 Ala. 14, 52 So. 345; Killen v. State,16 Ala. App. 31, 75 So. 176. It is true that one other witness, Harold Blackwell, was permitted without objection to testify that the deceased was drinking at the time, but this did not cure the error previously committed. The defendant was entitled to have this fact, if it were a fact, clearly established to the jury. If the deceased was intoxicated at the time, this fact would shed light on the act of the defendant, and also upon the nature and character of the assault made upon him by deceased. It is undisputed that the deceased provoked the difficulty, not only by opprobrious words, but by a violent assault upon the defendant at his place of business.

The defendant excepted to several portions of the oral charge of the court. The first exception related to the statement by the court to the effect that malice was presumed by the use of a deadly weapon. The court went further, and qualified this by stating that this presumption did not arise where the evidence which shows the killing also shows that it was perpetrated without malice. The charge of the court with respect to this particular question was a clear, precise, and able statement of the law. The court instructed the jury that, in weighing the testimony of the defendant, they might consider the fact of his interest. This was not on the effect of the evidence, and was a correct statement of the law. The court charged the jury in this connection:

"The defendant's evidence should be fairly and impartially considered by you, like you would consider the evidence of any other witness."

The defendant excepted to certain isolated portions of the court's general charge; but when the charge is considered as a whole, as it must be, it is fair, clear, and free from error.

The court will not be put in error for refusing charge 8; it was too broad. Whether the pistol was concealed or not was relevant testimony, and may affect the verdict — not within the meaning of section 4456 of the Code in this case, as it was conceded that the deceased was the assailant — but as any relevant testimony may affect the verdict.

Refused charge J was abstract. The defendant testified that he armed himself before the deceased came to his place of business, and there is no evidence of a former difficulty or threats against the defendant by deceased.

For the error indicated, the cause is reversed and remanded.

Reversed and remanded.

¹ Reported in full in the Southern Reporter; not reported in full in 146 Ala. 683.