Davis v. State , 216 Ala. 475 ( 1927 )

Appellant was indicted for murder in the first degree, and was convicted of murder in the second degree; but upon appeal to this court the judgment of conviction was reversed. Davis v. State,214 Ala. 273, 107 So. 737.

Upon the second trial defendant interposed a plea of acquittal of murder in the first degree, which was confessed by the state, and of course the trial properly proceeded before the venire regularly drawn for the week. Defendant's exception as to the refusal of a special venire was therefore without merit.

The defendant was charged with killing one Howell, which was admitted, and pleaded self-defense. He was again convicted of murder in the second degree, from which conviction this appeal is prosecuted.

A concise history of the case may be found in the opinion of the court on former appeal, and needs no repetition here.

In the motion for a new trial it was contended the court erred in portions of the oral charge, but the bill of exceptions discloses that "the defendant did not reserve any exception to any portion of the court's oral charge," and without such exception nothing in this respect is here presented for review. City Council of Montgomery v. Gilmer,33 Ala. 116, 70 Am. Dec. 562; Stull v. Daniel Mach. Co., 207 Ala. 544,93 So. 583; Gurley v. State, ante, p. 342, 113 So. 391, present term.

Nor is there any merit in the exception reserved to the remarks of the court following the reading of defendant's given charge 13. The exception was to the remarks as a whole, though only a portion thereof is referable to said given charge. Moreover, the remarks so applicable were not in qualification of such charge, but only by way of explanation. Section 9509, Code of 1923; Eiland v. State, 52 Ala. 322; Williams v. State,113 Ala. 58, 21 So. 463.

The testimony of Gilbert Turney, witness for the state, on direct examination, as to the position of the hands of deceased while sitting in the car, was the same as on his re-examination by way of rebuttal, and his further examination on recall by the state was a matter resting in the sound discretion of the court. Gurley v. State, supra.

Defendant killed deceased by shooting him with a 38 Smith and Wesson pistol. There was no error in permitting the state to prove by the witness Pope that in the late afternoon of the day of the homicide and just a few hours previous thereto defendant asked witness if he had any 38 smokeless pistol shells for sale. This was evidence relevant to the issue presented on the trial.

The testimony of witness Kent as to what defendant said was excluded by the court, and very clearly no error here appears. Upon examination of one Tapscott, the court, at defendant's request, had the jury retire before the witness testified to the conversation had, and subsequently ruled the testimony inadmissible. That no error here appears is too clear for discussion.

It developed that ill feeling was aroused by the appearance of defendant as a witness in a prosecution of deceased in a case at Hartselle where deceased was charged with speeding. The court properly excluded any details of defendant's evidence in that case as immaterial, and also as to whether or not defendant informed on deceased as to the speeding case. That defendant had appeared as a witness against deceased and incurred his hatred and ill will on that account sufficed for all practical purposes, and further inquiry would unnecessarily enlarge upon a collateral matter. It may be noted, however, that defendant had already testified without objection that he told deceased he was mistaken in charging that he informed on him; that he made no mention of his name and appeared only as a witness.

The defendant was permitted to prove threats by deceased against him, and that these threats were communicated to defendant, but any advice or warning given him by any of these witnesses was properly excluded as no part of any threat communication. Defendant testified to receiving two letters, one before any testimony was given by him in the case of speeding against deceased. It was not signed in the name of the deceased, was not shown to be in his handwriting, nor that he knew anything about it or had any connection with its being sent. Clearly, under these circumstances, there was no error in its exclusion.

Nor was there error in declining to permit defendant to state whether or not Burt Smith also testified in the case against deceased. It was wholly immaterial. There was no error in permitting the state to show by the witness Turney that deceased was unarmed. All material parts of the conversation had between the witness Burleson and deceased were testified to by the witness, and the court was correct in the statement to counsel that the further question asked had in fact been answered. There is no merit in this insistence.

We have treated the questions argued in brief by counsel for appellant, but mindful of our duty in cases of this character, we have carefully examined the record to ascertain it prejudicial error has intervened. The matters considered herein and discussed by counsel embrace all questions calling for special treatment, and upon due consideration the conclusion is reached that no error has been committed, and that the judgment of the court below should accordingly be here affirmed. It is so ordered.

Affirmed.

ANDERSON, C. J., and SAYRE and BOULDIN, JJ., concur.