Citation Numbers: 11 Ala. App. 329, 66 So. 820
Judges: Brown
Filed Date: 11/24/1913
Status: Precedential
Modified Date: 7/19/2022
The appellant was- indicted at the fall term, 1913, of the circuit court of Monroe county for murder in the second degree, and on the 23d of March, 1914, was convicted of manslaughter in the first degree, and, as a punishment for this offense, was sentenced to the penitentiary for eight years.
The killing occurring in the month of July, 1913, at a house on the plantation of one Paul» Richardson, occupied by Aggie Davidson, Lorenzo Dubose, et al. At the time of the killing, Lorenzo Dubose was sick, and the defendant was staying in the house nursing him. On the night of the killing the deceased, Sam Mosely, and one Richardson went to the house of Aggie Davison, where a difficulty occurred between Richardson, Mosely (the deceased), and the defendant,.over Cora Dees, another woman who was at this place. There was no dispute that the defendant killed the deceased by shooting him with a shotgun in Monroe county before the finding of the indictment. The evidence on the part of the state tends to show that the killing was done by the defendant as a result of passion engendered through the interference of Richardson and the deceased with the woman Cora Dees, and without legal justification; while that on the part of the defendant tends to show that, at the time the defendant fired the shot that killed the deceased, the deceased was pursuing the defendant with a pistol presented, snapping it; and, after the pistol had snapped the second time, the defendant procured a gun aud shot the deceased in the face, inflicting a wound from which he died instantly. The defendant introduced as a witness in his behalf one Lo
On cross-examination the solicitor asked this witness the following question:
“On the preliminary trial, did you not testify that Mose went to the buggy where Mr. Richardson was, and Mr. Richardson said, ‘I’ll shoot you into- dollrags, nigger.’ And then Mose left the buggy and came up to- the front door, and Sam was behind him, and said he would shoot him into dollrags. As he passed the door, I saw his hands out that way, but did not know whether there was anything in there or not; and after he passed the door I heard the gun fire.”
As w;e have stated, the fact that the defendant killed the deceased by shooting him with a gun in Monroe county before the finding of the indictment was not controverted. There being evidence offered tending to support the theory of both the state and the defendant, the affirmative charge requested by the defendant was properly refused. The only other matter, complained of is the action of the court in overruling the defendant’s motion for a new trial. This ruling of the court is not reviewable on appeal in criminal cases, and can avail the appellant nothing.
There being no error in the record, the judgment of the circuit court is affirmed.
Affirmed.