Kimbrell v. State

BRICKEN, P. J.

This defendant was charged by indictment with the offense of murder in the first degree, the specific charge being that he unlawfuly and with malice aforethought killed Jim Elliott ,by shooting him with a gun, etc. He was tried and convicted, the verdict of the jury being that he was guilty of murder in the second degree, and his punishment was fixed at imprisonment in the penitentiary for a term of 15 years. Judgment was entered accordingly.

On the defendant’s motion to-quash the venire it is immaterial whether the name of the juror in question was Harlan or Horton, as the statute expressly provides that, if the sheriff fails to summon any of the jurors drawn, or any juror summoned fail or refuse to attend the trial, or there is any mistake in the name of any juror drawn or summoned, none nor all of these grounds shall be sufficient to quash the venire or continue the cause. Acts 1919, p. 1039, § 32. See, also, Acts 1909, p. 305, § 29, wherein it is provided that no objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors."

The court declined to charge the jury as to manslaughter, although specially requested so to do by defendant. Prom the facts as shown by the record in this -case, there was no error in refusing to charge on manslaughter, while the general rule is, on trials for murder, it is safer for the court to charge the jury as to all degrees of homicide, a failure to do so will not work a reversal, if the evidence shows accused to be guilty of the degree as to which charge was given, if guilty at all. In other words, if there is no evidence upon which to predicate a charge of manslaughter, it is not error to refuse to charge thereon. In trials for murder it is the duty of the court to instruct the jury as to all degrees of homicide, unless there is an entire absence of all proof as to the degrees omitted. Compton v. State, 110 Ala. 24, 20 South. 119; Gafford v. State, 125 Ala. 1, 28 South. 406; Rogers v. State, 117 Ala. 9, 22 South. 666.

On the trial of this case in the court below numerous exceptions were reserved to the rulings of the court and are here insisted upon as error. We shall not attempt to discuss all of these questions, as no good purpose can be accomplished by so doing. We do state, however, that in many instances the exceptions taken appear to be without merit.

Among the .numerous witnesses examined upon this trial, one J. T. Terry, a deputy sheriff, was examined as a witness for the state. On the direct examination of this witness he testified that he went to the place where Jim Elliott’s (deceased’s) body was that night, and further:

“I went to Love Iiimbrell’s [defendant’s] house on the following morning. I arrested him. I had-a conversation with him. I asked him to talk to me. I asked him where his gun was, and he said it was in the house; and I said, ‘Let’s go and get it;’ and we went and got it. I said. ‘Love, how long has it been since your gun had been shot off;’ and he said, ‘My gun' hasn’t been shot in two months,’ and he showed me the gun sitting by the comer.”

After testifying further about the gun shells, eta., he was asked, “Did you ask him (Love), ‘Didn’t old man Rufus Blalock try to get you to go over ?’ ” and he said he did.. The defendant moved to exclude the last statement, to which the court replied, “I will sustain the objection to that.” The above conversation, and other of like import, was testified to by state’s witness Terry. He stated, also, that he went to defendant’s home the morning following the killing, in company with J. R. Bates, another state witness, and that when he reached defendant’s home he saw defendant and his brother-in-law, one Allen Davidson; that they, defendant and Davidson, were together. State witness Bates also testified as 'to the conversation of Terry on that occasion.

When the defendant was developing his case, he undertook to prove by his witness Allen Davidson what state witness Terry had said on that occasion, but upon objection by state the court would not permit him to do so. In this there was error. The state having brought out in detail -what Terry, the arresting officer, had said on the occasion in question, it was clearly the right of the defendant to give evidence of the same conversation, and the refusal of the court to allow this was error, as it violated the elementary rules of evidence bearing on this question. Not only were proper exceptions reserved in this connection, but counsel for defendant took the precaution to state to the court that “it is all a part of what they [the state] brought out.”

This error necessitates a reversal of the judgment of conviction; and, as the case •will in all probability be tried again, we shall refrain from dealing with other rulings of the court upon the evidence. And while, it is true that the testimony of deceased? s daughters, under the circumstances as shown by the record, may be of slight probative force, as contended by counsel for defendant, yet this is a matter for. the jury, and we are without authority to declare what weight should be given to this evidence by the jury.

The judgment of conviction, appealed from, is reversed, and the cause remanded.

Reversed and remanded.