Montgomery v. State , 18 Ala. App. 213 ( 1921 )

MERRITT, J.

This is the second appeal in this case, the first appeal being reported in 17 Ala. App. 469, 86 South. 132, Montgomery v. State. In the instant case the defendant was placed on trial on a charge of murder in the second degree. He was found guilty of manslaughter in the first degree, and his punishment fixed at five years in the penitentiary.

There was no error in refusing to give the written affirmative charge requested by the defendant. The record recites;

“This was all the evidence offered by the defendant, except that of the witness Oscar Roan, and this was all the evidence offered in the trial of the case, except that of Oscar Roan.”

It thus clearly appears that the bill of exceptions does not contain all the evidence in the trial of the case; therefore error cannot be predicated on the refusal to give the affirmative charge. Bridgeforth v. State, 16 Ala. App. 239, 77 South. 77.

The appellant’s contention that he was denied the right by the trial court to make proof of his reason for remaining in hiding and evading the officers for several months after the killing in May until November, when he gave himself up, is not borne out by the record. While we do not decide that one can give his reason for evading arrest, as a matter of fact in this case the defendant, as was shown by his testimony and other witnesses, at and before the time Of the killing, was under certain charges for violating the prohibition law, under a suspended sentence for an infraction of these laws, was in hiding and so remained, until settlement had been made of all of them, and that he then surrendered to the sheriff for the slaying of Red Nelson. These facts being in evidence, it was for the jury to say as to what reason prompted the evasion of the officers, whether it was on account of the violations of the prohibition laws, or from a consciousness that he was guilty of criminal homicide.

It being shown by the testimony of Leldon Ward that Lum Ward was also under indictment for the killing of Red Nelson, there was no error in allowing the solicitor to ask the witness Leldon Ward where his father, Lum Ward, was when he left, and to show that he left while the grand jury was in session that indicted the appellant. Besides the testimony disclosed that Lum Ward was present when appellant shot Red Nelson, that he assisted appellant in hiding the body of Nelson, and that, in a conversation between Lem Turney, Lum Ward, and appel- ’ lant, shortly after the killing, appellant stated he shot Nelson, and that Ward cut his throat.

We think that part of the court’s oral charge ■ excepted to by the defendant was free from error, and that it correctly states the law applicable to the facts in this case. As stated before, the appellant testified as to his dodging the officers, the time of the evasion, and testified to facts which he insists prompted this evasion. Considering the fact that the defendant admitted the killing of Nelson; the hiding of his body; that previous thereto and at that time he was under charge of a violation of criminal laws of the state, it'was for the jury, from a consideration of these and all other facts in evidence, to conclude whether the flight was from a consciousness of guilt, and, should this conclusion be reached, then the flight so concluded became a probative fact, and was some evidence, a circumstance, tending ■ to show the guilt of the defendant. Not only may the jury conclude that under all the evidence, if the defendant fled, that it was from a consciousness on defendant’s part that he was guilty, or in this case that he did not act in self-defense, but, having so concluded, such flight became a fact, a circumstance, tending to show his guilt. Goforth v. State, 183 Ala. 66, 63 South. 8; Underhill on Evidence (2d Ed.) § 118; Ross v. State, 74 Ala. 532, Bowles v. State, 58 Ala. 335.

There was no error in the court’s charge in reference to the jury considering the fact that the defendant was interested in the result, and that, if convicted, he would have to suffer punishment, in determining what credibility should be accorded his testimony. Weaver v. State, 1 Ala. App. 48, 55 South. 956.

With respect to the objections made to the argument of the solicitor, it need only be said, there was no motion made to exclude it from the jury. B. R., L. & P. Co. v. Gonzales, 183 Ala. 273, 61 South 81, Ann. Cas. 1916A, 543; Jackson v. State, 11 Ala. App. 304, 66 South. 877.

We cannot say that the trial court was wrong in its construction of the agreement of counsel in reference to the testimony of Lum Ward. It appears that the testimony was read, and the agreement was “that the testimony as given upon the former trial should be his testimony upon this trial.”

Charge numbered 1 was properly refused for the reason that it is incomplete.

Charge numbered 2 was covered by other given written charges and the court’s oral charge, and for these reasons was properly refused.

Charges 4, 6, 7, 10, and 16 are bad, for the reason that they do not set out the elements constituting self-defense or justification. Garth v. State, 8 Ala. App. 23, 62 South. 383.

There is no error in the record, and the judgment appealed from is affirmed.

Affirmed.