Eaton v. State

PELHAM, J.

— Many of the questions presented on this appeal are determined in the companion case of Fouler v. State, Infra, 63 South. 40. The defendant in that case is a codefendant, jointly indicted with appellant, but separately tried and convicted at the same term of the city court, the appeals in both cases being submitted here at the same time. — See Fowler v. State, Infra. See, also, Kennedy v. State (Sup.) 62 South. 49, present term, a case involving the same tragedy, and in which the defendant was also a codefendant, jointly indicted with the appellant in this case.

Charge 15 singles out a part of the evidence for special consideration .of-: the jury, and to give the .charge would'he to' gratuitously accentuate, that certain part oi* phase of the evidence: No duty rests upon the court to do this, and it cannot be put .in error for refusing an instruction chargeable with such an infirmity. — Hosey v. State, 5 Ala. App. 1, 59 South. 549; L. & N. R. R. Co. v. Price, 159 Ala. 213, 48 South. 814.

. jit is proper to refuse.a requested instruction, though it asserts a correct:, principle of law, if it gives undue prominence to a certain part of the evidence, — Hanchey v. Brunson, 175 Ala. 236, 56 South. 971.

The original charge, which is attached to the transcript as being certified to this court for inspection, and which was refused by the trial court because “illegible,” is certainly subject to that criticism. It is very carelessly written, or scrawled, in pencil upon a leaf taken from a stenographers’- notebook (or like paper), and contains numerous awkward and rough erasures, inter-lineations, and scratches. The chirography thus displayed to. us in this condition in the original charge has been found to be beyond the ability of the members of this court to decipher, after careful scrutiny and critical examinatibn, -without the aid of the typewritten translation furnished to us, that was not before the judge of the primary court. A judge is not called upon to delay a trial in an endeavor to unravel the difficulties of deciphering unintelligible terms or writing in a charge, but may, as the trial judge did in this cáse, refuse it as illegible, -without being put in error.

It would not have been proper for the court to give the'defendant the general charge on the second count of - the indictment, averring the killing to hav'é been done by shooting with ¿ pistol,- as it was for- the jury to say, -under the evidence in this case, whether the bullet wounds testified to by the physician and other witnesses:-were; produced by shots fired from a pistol or •some other firearm.

.■ Besides, - although it be conceded-.that the deceased did not die from a wound inflicted by :a shot from a -pls-:tol, still the defendant would not be.entitled to: a charge .directing an acquittal; he might even:,in that ease ha:ve been convicted on that count of a felonious assault. Tulley v. States 174 Ala. 101, 57 South. 445.

The .court properly refused.'the requested- instructions assuming thut-tbe defendant could, not be found guilty ;.as an raider or abettor. — Talley v. State, 174 Ala. 101, 57 South. 445. The evidence-showed-, that the- ,defendant was present at the time oh the commission, of the offense;: there- was- evidence affording an inference that he was.-present, in .pursuance of a common enterprise: or adventure,-having- in-contemplation the commission of •the offense charged, to render assistance, if necessary, or support or encourage , by his acts, words, or presence the actual-perpetrator,, and, if so, he was an aider or abettor. - Jones v. State, 174 Ala. 53, 57 South. 31.

•: - That:part-of-thh oral: charge of the-court, set. out in the bill .of exceptions^ to which an exception was reserved is-'a .fair and reasonably correct-exposition of the law on the.proposition treated...-.If it is Subject, to. .any criticism,-it would be due to the fact -that it is'even more favorable to the-defendant, than .he .was .entitled to have charged under- the applicable rule of law. — Jones v. State, supra; Pearce v. State, 4 Ala. App. 33, 58 South. 996.

From what Ave have said, and from an examination of the :authorities cited in support thereof, it will be seen.that the court was free from error in refusing charge No. 13.

There was no error in permitting the solicitor to show by the witress Dyer that the defendant and others with h'm proceeded on their journey after the hilling. The movements of the defendant shortly before and after the commission of the crime are circumstances admissible in evidence. — Dupree v. State, 148 Ala. 620, 42 South. 1004. See, also, 6 Mayfield’s Dig. p. 353, § 31, subd. 371.

The question ashed the Avitness Dyer by the defendant as to the defendant’s being innocent of the crime so far as he hnew referred to the Avitness the determination of the guilt or innocence of the defendant, and this was the question at issue, Avhich it Avas the province of the jury alone to determine.

It AAras not improper for the court to permit the solicitor to call upon the defendant Avhen under cross-examination to explain, if he could, the inconsistency of certain statements made by him Avith certain physical facts shoAvn by the evidence. The range and extent of cross-examination, as has often been said, is always a matter largely within the discretion of the court, and we do not think the court permitted the solicitor to exceed the legitimate right to cross-examine the defendant in this particular, under the latitude alloAved by the rules of laAv. Matters testing the accuracy of a Avitness’ statement are legitimate subjects of inquiry upon cross-examination (Davis v. Anderson, 163 Ala. 385, 50 South. 1002), and AAdien a defendant has offered himself as a Avitness in Irs OAvn behalf, it is not improper to ask him a question on cross-examination seeking an explanation. —Harrell v. State, 166 Ala. 14, 52 South. 345.

We have discussed the questions presented by brief in their order of presentation, and have examined the record as to all other matters. We find nothing requir-irg' a reversal of the judgment of the lower coürt, and an affirmance will he ordered.

Affirmed.