Evidence of a pistol defendant had the day after the alleged crime was erroneously admitted. Williams v. State, 147 Ala. 10,41 So. 992; Morris v. State, 146 Ala. 66, 41 So. 274; Sanford v. State, 2 Ala. App. 81, 57 So. 134; Hickman v. State, 12 Ala. App. 22,67 So. 775; Thomas v. State, 18 Ala. App. 268,90 So. 878; Anderson v. State, 209 Ala. 36, 95 So. 171; Aplin v. State, 19 Ala. App. 604, 99 So. 734; Williams v. State, 20 Ala. App. 257,101 So. 367. Evidence of a confession made by defendant while in the hands of a posse should not have been admitted. Cook v. State, 16 Ala. App. 390, 78 So. 306; Curry v. State, 203 Ala. 239, 82 So. 489; Carr v. State, 17 Ala. App. 539,85 So. 852. What defendant said six or eight months before the tragedy was admissible as throwing light on his sanity. Odom v. State, 174 Ala. 4, 56 So. 913; McAllister v. State,17 Ala. 434, 52 Am. Dec. 180; Gardner v. State, 96 Ala. 12,11 So. 402; Winford v. State, 16 Ala. App. 143, 75 So. 819; Howard v. State, 172 Ala. 402, 55 So. 255, 34 L.R.A. (N.S.) 990; Anderson v. State, 209 Ala. 36, 95 So. 171; 1 Greenl. on Evi. (16th Ed.) 58. In order for a nonexpert to testify as to sanity, he must have had acquaintance of such duration and intimacy to enable him to form a reasonably accurate and trustworthy opinion. Stuckey v. Bellah, 41 Ala. 700; Ford v. State, 71 Ala. 385; Powell v. State, 25 Ala. 21; Norris v. State, 16 Ala. 776; Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193; Parish v. State, 139 Ala. 16, 36 So. 1012; 2 Greenl. on Evi. § 372. There was no evidence of kidnapping, and the argument of the solicitor was improper and prejudicial. Allen v. State, 19 Ala. App. 302, 97 So. 165; Gray v. State,19 Ala. App. 550, 98 So. 818; Carmichael v. State, 197 Ala. 185, 72 So. 405; McDaniel v. State, 20 Ala. App. 407, 102 So. 788; Rowe v. State, 20 Ala. App. 119, 101 So. 91. Defendant's charge 6 was erroneously refused. Gardner v. State, 96 Ala. 12, 11 So. 402; Odom v. State, 174 Ala. 4, 56 So. 913; McAllister v. State,17 Ala. 434, 52 Am. Dec. 180; Murphee v. Senn, 107 Ala. 424,18 So. 264; Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20; Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193.
Charlie C. McCall, Atty. Gen., and W. M. Rayburn, Asst. Atty. Gen., for the State.
Testimony as to footprints was entirely competent and proper. Young v. State, 68 Ala. 575; Campbell v. State, 23 Ala. 44; 14 Cent. Dig. Cr. Law, § 768. The confession, being shown voluntary, was admissible. Young Griffin v. State, 68 Ala. 569. Rulings on admissibility of evidence as to defendant's sanity were without error. Russell v. State, 201 Ala. 572,78 So. 916; Smith v. State, 182 Ala. 38, 62 So. 184; Jones v. State, 181 Ala. 63, 61 So. 434; 30 C. J. 220. The argument of the solicitor was within legitimate bounds. Chambers v. State,84 So. 6381; Cross v. State, 68 Ala. 476; Du Bose v. State,148 Ala. 560, 42 So. 862. It is no error to refuse charges on subjects already fully covered by given charges. Miller v. State, 110 Ala. 69, 20 So. 392; Murphy v. State, 108 Ala. 10,18 So. 557; Sills v. State, 2 Ala. App. 73, 57 So. 89.
1 17 Ala. App. 178.
We are at a loss to understand the purpose of the state in showing the existence of tracks and the size of same by the witnesses who had actually seen the two persons while making the tracks and had fully described them, and who must have made tracks as they went along, and one of whom was described as larger than the other. On the other hand, this evidence could not have been prejudicial to the defendant as it was but a method to establish a fact, in a secondary sense, which had already been established by the best undisputed evidence.
There was no error in permitting the witnesses to testify that when the persons passed going in the same direction of the swimming hole, where the homicide took place, they were "pulling or pushing each other," in view of the subsequent evidence of the confession of the defendant that he forced or compelled the deceased to go with him. Nor was there error in permitting proof that defendant had a pistol the day after the shooting in connection with his subsequent exhibition of a pistol to certain witnesses containing a discharged chamber, and the further statement that he had used it in killing a man.
We think a sufficient predicate was established to show that the confessions were voluntary. True, the last one was made when the defendant was captured or arrested or when being taken to jail, but the evidence clearly shows that they were not obtained by threats, promises, or inducements. There is nothing in the case of Curry v. State, 203 Ala. 239, 82 So. 489, that would render the confessions in this case inadmissible.
It is difficult to tell just what was included in the objection and ruling of the trial court on page 38 of the record in the testimony of W. F. Birchfield. The state objected to the question as to the grudge against the Dudley boy, but the witnesses answered fully. Defendant's counsel then asked, "What else did he say." The court: "Wait a minute. I don't think that is competent." And the defendant excepted. We can hardly put the trial court in error to the statement as to such a general question.
We do not think the trial court erred in permitting the state's witnesses to give their opinion as to the defendant's sanity. The defendant had offered evidence, nonexpert evidence, that he was insane, therefore the state's witnesses who knew him well and intimately could give their nonexpert opinion on the subject. Pritchard v. Fowler, 171 Ala. 662, 55 So. 147. True, one or two of these witnesses admitted that their association with the defendant was not as frequent or intimate during the year preceding the homicide as in previous years. Where insanity is a defense to crime, much latitude is given both to the state and defendant as to acts, conditions, and conduct not only at the time of the offense, but prior and subsequent thereto. Russell v. State, 201 Ala. 572, 78 So. 916.
There was no error in not excluding the argument of the solicitor to which an objection and exception were reserved.
There was no error in giving charge 1 at the request of the state. It conformed to the statute as to the burden of proof. Section 4572 of the Code of 1923.
There was no error in refusing the defendant's requested charge 6. If not otherwise faulty, it instructs that the establishment of insanity subsequent to the commission of crime creates a presumption that it existed at the time the crime was committed. It is a rule of law that where permanent, as distinguished from temporary or spasmodic, insanity is established, it is presumed to continue, but we know of no rule making the establishment of insanity, permanent or temporary, a presumption that the party was insane prior thereto.
The other charges requested by the defendant, whether in proper form or couched in proper language, or not, were fully and fairly covered by the oral charge of the trial court.
The judgment of the circuit court is affirmed except as to the sentence. The defendant was sentenced to death by hanging, but the time has expired and the method of imposing the death penalty is now by electrocution,
and the cause is remanded in order that the trial court may resentence the defendant in conformity with the present statute. Leonard v. State, ante, p. 60, 114 So. 798; Bachelor v. State, 216 Ala. 356, 113 So. 67; Hall v. State, 216 Ala. 336,113 So. 64.
Affirmed in part and remanded.
All the Justices concur.