Hutchinson v. State

72 So. 572, 15 Ala. App. 96, 1916 Ala. App. LEXIS 116

• Court: Alabama Court of Appeals
• Decided: August 1, 1916
• Status: Published

Opinion

EVANS, J.

Appellant’s assignments of error numbered 1, 2, and 3, relating to the venire, .stand corrected upon the return to the certiorari granted on suggestion of diminution of the record.

(1) Other assignments 4, 5, 6, and 7. go to the question whether a remark made by deceased very shortly after he was stabbed was admissible as part of the res gestee. The circumstances under which it was made was as follows: On the night of the killing, deceased was walking down a street in Birmingham in company with appellant’s wife, returing from a “party.” Another couple (Drennen Moore and Mary Brown), returning from the same party, was distant about a half block. Suddenly deceased called out'to Drennen Moore, as testified to by Mary Brown: “Drennen, stop that man! He- struck me” — and, according to Drennen Moore’s testimony: “Drennen, catch that man. He had struck me.” Appellant ran past Drennen Moore and Mary Brown at or about the time deceased called out. On this state of facts, we are of opinion that the remark was a part of the res gestae and properly admitted as such. The outcry of deceased was so closely related in time to the act of stabbing that the alarm sounded was the instinctive and spontaneous utterance of deceased, springing directly out of the act and tending to give character and elucidation thereto. The utterance could not be said to be a narration of a past event or open to the suspicion of premeditation or design. A case somewhat similar to the instant case is to be found in Nelson’s Case, 130 Ala. 83, 30 South. 728.

(2) Appellant’s written request to charge No. 1 was properly refused; a similar charge was condemned as argumentative in Chestnut’s Case, 7 Ala. App. 72, 61 South. 609; besides, it is (elliptical, the word “not” being omitted.

(3-5) Written request No. 2 is elliptical, omitting the words “if” and “he had”; by this omission the charge postulates instead of hypothesizing, and is an invasion of the province of,the jury; besides, it pretermits both the predicates of freedom from fault and duty to retreat. The characterization of the danger, as “eminent” we take to be a clerical misprision.

Request No. 3 pretermits the duty to retreat and also freedom from fault in bringing on the difficulty.

Charge No. 10 is insensible, involved, repugnant, and open to the vice specified in No. 3.

Request No. 11 is a duplicate of No. 3.

Request No. 12 does not hypothesize freedom from fault in bringing on the difficulty, is argumentative, involved, misleading, and unintelligible.

The remaining requests, Nos. 13, 14, 15, 16, and 17, requested preemptory charges on the several degrees of murder and manslaughter, and in view of the state of the evidence in this case, their- refusal was obviously correct.

There is no reversible error in the record; and the judgment of the court below must be affirmed.

Affirmed.