Clark v. State , 18 Ala. App. 209 ( 1921 )

The appellant was indicted for murder in the first degree, was convicted of murder in the second degree, and sentenced to the penitentiary for a term of 15 years.

In the examination of several witnesses, the solicitor, over the objection of the defendant, was permitted to show that the defendant just before the shooting had his pistol concealed, and that it was not open to view. The objections made to these questions were general, and motions to exclude the answer were predicated on general grounds. The appellant insists that by this testimony the state invoked the provisions of section 7086 of the Code, which makes it murder in the second degree where the killing in any sudden rencounter or affray is caused by the assailant by the use of a deadly weapon which was concealed before the commencement of the fight, his adversary having no deadly weapon drawn. There is nothing in the record to indicate that such was the intention of the state in eliciting such testimony, and, whether the state was seeking to have a conviction under either of the offenses embraced in the indictment, it was competent to show the facts above enumerated as a part of the res gestæ. There is nothing in the court's oral charge or the given or refused charges which indicates that this section of the Code, or the aspect of the case as now presented, was even called to the attention of the court, jury, or any one connected with the trial of the case. Moreover the defendant testified without objection when being examined in his own behalf that he had not shown his pistol up to the time he shot, and he cannot complain of the improper admission of testimony where he himself testified to the same facts. Swain v. State, 8 Ala. App. 26, 62 So. 446; Ragland v. State, 178 Ala. 59, 59 So. 637; Chestnut v. State, 7 Ala. App. 72. 61 So. 609; 4 Michie Dig. p. 575.

On redirect examination the witness Howard Andrews stated that he had a conversation with the defendant on Friday morning before the shooting on Saturday. The solicitor then asked the witness: "What did he tell you?" Over the objection of the defendant the witness answered he was up at Ballard's (deceased's) the night before to see him about some cows, and they got up a row, and Ballard jumped at him, and took his gun away from him, and told him he would wear him out if he didn't go on and leave him alone; that Ballard could not come down there that morning and do him that way again. It is sufficient to say in regard to the objections and motion to exclude the answer that they were general objections, and as much insufficient.

That the defendant entertained ill will towards the deceased, and made a threat against deceased, was admissible, and a mere general objection is unavailing unless all of the conversation was inadmissible. Roden v. State, 13 Ala. App. 105, 69 So. 366; West v. State, 7 Ala. App. 145, 62 So. 290, 13 Michie, p. 718. Moreover, if the grounds of objection were good, the answer reveals a declaration made by the defendant in the nature of a threat against deceased, and therefore no injury resulted to the defendant. Wilson v. State, 110 Ala. 1,20 So. 415; Wilson v. State, 140 Ala. 43, 37 So. 93. Threats or statements in the nature of threats, tending to show preparation for crime, or even the conduct of accused at or near the time or place of the crime, are admissible in evidence. Davis v. State, 126 Ala. 44. 28 So. 617.

After the witness Gilley had testified the defendant made a motion to exclude his testimony. Where no objection is made to the question until it has been answered, the defendant is not entitled to have the answer stricken on motion. Malone v. State, 16 Ala. App. 185, 76 So. 469; Machen v. State,16 Ala. App. 170, 76 So. 407; Rivers v. State, 13 Ala. App. 362,69 So. 387 13 Michie Dig. p. 720.

Besides a portion of the testimony was admissible. It was proper to show, as testified to by the witness, that on the day of the shooting defendant was looking at a pistol on the porch of his house, and, if portions of the testimony were objectionable, they should have been pointed out, and specifically objected to, and not made the grounds of general objections, as was the case in this instance.

There was no error in refusing to allow the witness Dr. Smith to give his opinion as to the relative positions of the defendant and deceased at the time the fatal shot was fired. As an expert he could give his opinion as to the range of the shot; but the conclusion as to the position of the parties when it was fired was a matter for the jury to draw from all the facts in the case. Rigell v. State, 8 Ala. App. 46, 62 So. 977.

There was no merit in the objection made to the question asked by the solicitor to the witness Mrs. Clark as to whether she told defendant what she had heard, the question having reference to a conversation witness had detailed as having taken place that day between deceased and defendant, wherein deceased said he would get defendant before night. The threat having been made directly by deceased to defendant, the solicitor was no doubt laboring under a misapprehension when he asked the witness if she had told defendant about it.

Written charge B was properly refused. It was clearly the province of the jury to say from all the evidence which party was at fault in bringing on the difficulty. Moreover the charge singles out and gives undue prominence to a portion of the testimony.

Written charge G was properly refused. Its meaning is obscured by the use of the word "then" where it was no doubt intended to use the word "there," and, even with this correction, it would be faulty, in that it is not based upon the evidence. Moreover, "just apprehension that he was in danger of suffering great bodily harm," as hypothesized in this charge, is not sufficient. He must be in a position of actual peril, or in such position that a reasonable man so situated would have believed himself to be in such danger, and must have honestly believed he was in such danger.

The other charges refused to the defendant bear on the doctrine of self-defense, and were fully and fairly covered by the court's oral charge.

In addition to the propositions insisted upon by counsel in their brief, we have considered every objection and exception taken, and we find no merit in any of these.

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

Affirmed.