Fleming v. State

43 So. 219, 150 Ala. 19, 1907 Ala. LEXIS 343

• Court: Supreme Court of Alabama
• Decided: March 2, 1907
• Status: Published

Opinion

ANDERSON, J.

There -was no error in permitting the witness Roland to testify what the defendant said to him and what he said to the defendant, immediately preceding ihe shooting. All of this was a part of. the res geshe. The question and answer were produced by the instinctive, upon'the occurrence ; the spontaneous, expression of the defendant and the witness.—Nelson v. State, 130 Ala. 83, 30 South. 728; Wesley v. State, 52 Ala. 182.

The trial court properly declined to let the defendant prove who turned off the light and to enter into the details of a difficulty that ocurred some time previous and at another place.

There was no error in refusing to let the defendant prove the alleged threat made by deceased at Cox’s house. There had been no evidence of self-defense up to that time, nor was there a conflict in the evidence as to who was the aggressor.-—Gregory v. State, 140 Ala. 16, 37 South. 259; Ragsdale v. State, 134 Ala. 24, 32 South. 674. Moreover the question was so framed as to justify the trial court in sustaining the objection, even if the threat was admissible. It practically called upon the witness to not only testify as to the threat, but in effect compelled him to testify as to “Jule’s” turning out the lights, in order to tell about the threat.

There was no error in excluding what the witness Howard Taylor said after defendant offered to shake hands with the deceased. It was not responsive to the question asked by the defendant’s counsel.

There was no error in excluding what deceased said to defendant in the saloon, nor what happened up there, nor what the defendant said about ^showing them how near he came, to being shot in the leg while at Joe Roland’s house.

Charge 1, requested by defendant, Avas properly refused. It invaded the province of the jury.—Crane's Case, 111 Ala. 45, 20 South. 590 (charge 3).

The trial court erred in refusing charge 2, requested by the defendant.—Bones v. State, 117 Ala. 138, 23 South. 138; Whitaker v. State, 106 Ala. 30, 17 South. 456;; Croft v. State, 95 Ala. 3, 10 South. 517. It was. not duplicated in giving charge 5.

The trial court did not err in refusing charge 3. It might be correct, if relating only to the witness for whom the showing Avas made, Avhich Ave need not decide; but it applied the rule to the testimony of the deceased witness also. The evidence as to this witness was also admissible as secondary evidence, because of proof of his death; and it cannot be said that the injury Avas to consider it just as if he was there on the stand.

Charge 4, requested by the defendant, tvas properly refused. If not' otherwise bad, it ignores the defendant’s duty to retreat.

Charge 5, requested by the defendant, ivas properly refused. If not otherwise bad, it pretermits an honest Felief on the part of the defendant that he was in imminent peril.—Harrison v. State, 144 Ala. 20, 40 South. 568; Scales v. State, 96 Ala. 76, 11 South. 121.

There was no error in refusing charge 6, requested by the defendant. It was argumentative, and preteimits the defendant’s freedom from fault in bringing on the difficulty. The defendant may have been without fault at the time of the sh.ooti.ng, yet he may not have been free from fault in bringing on the difficulty.

For the error above designated, the judgment of the uitv court is reversed, and the cause íemanded.

Reversed and remanded.

Tyson, C. J., and Haralson, Dowdell, Simpson, and McClellan, JJ., concur.