Hutcherson v. State

50 So. 1027, 165 Ala. 16, 1909 Ala. LEXIS 297

• Court: Supreme Court of Alabama
• Decided: December 16, 1909
• Status: Published

Opinion

McGLELLAN, J.

— The defendant was adjudged guilty of murder (second degree) of her husband; the tragedy taking place within their common abode. The justification set up was self-defense. There was evidence tending to support this defense.

In argument to the jury, the representative of the state said: “Gentlemen of the jury, why didn’t the defendant bring Dr. Mason here, and show you by him that he was doctoring her?” Seasonable objection and motion to exclude this statement were overruled. It appears that the defendant testified to Dr. Mason’s professional attendance upon her, and that she was sick at the time of the killing. From the bill it appears that Dr. Mason’s place of residence wás Excel, Ala. It does not appear that this physician was not as accessible to the prosecution as to the defense. Under such circumstances as this record shows, the solicitor’s quoted statement was improper, and should have been disallowed. — Crawford v. State, 112 Ala. 1, 23, 21 South. 214; Bates v. Morris, 101 Ala. 282; Brock v. State, 123 Ala. 24, 26 South. 329.

The fact, if so, that deceased had, on former occasions, beat her, was properly excluded.

,The part of tbe oral charge excepted to was erroneous.

Charge 1, given for tbe defendant, announced the lav-applicable to the nonduty of tbe defendant to retreat under tbe circumstances hypothesized.

For tbe error first indicated, tbe judgment is reversed, and tbe cause remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.