SAYRE, J.
The indictment against the prisoner was returned on June 4, 1923, by a grand jury which had been duly organized prior to February 26, 1923, and on the last-named day had been recessed subject to the order of the court. By an order spread upon the minutes of the court, the previously organized grand jury were called into session on June 4th, and on that day, as we have noted, returned the indictment in this cause. The proceeding thus shown was in accord with the statute (section 8665 of the Code of 1923), and was free from error.
Defendant was on trial for the killing of John L. Knox. The evidence objected to in assignments of error 39 and 40 tended to show threats and expressions of ill will by defendant against deceased, and was properly allowed to go to the jury. The fact that one of these threats was conditional, and that the other was directed against some unnamed person, who is referred to merely as being of canine lineage on the maternal side, did not render them inadmissible. Cribbs v. State, 86 Ala. 613, 6 So. 109; Ford v. State, 71 Ala. 385. The jury could have found no difficulty in inferring that deceased was the person against whom such threats were intended.
It appeared that defendant, a few moments after he had shot and killed Knox, also fired two shots at one Jernigan, a policeman of the town of Andalusia, and wounded him. There was no error in allowing the sheriff, Livings, to testify that defendant’s first remark after he was taken into custody —a few minutes after the killing of Knox and the wounding of Jernigan — was: “That” (referring to Jernigan with an opprobrious epithet) “was the-I wanted.” This remark showed hostility to Jernigan (Smith v. State, 183 Ala. 25, 62 So. 864) and if defendant, when killing Knox, was venting his hostility against Jernigan, it was well for the jury to be enabled properly to characterize the act, even though the act and its malice were directed against different persons.
Defendant pleaded “not guilty by reason of insanity,” as well as “not guilty” and the burden of the evidence introduced by him was directed to the proposition that he was insane at the time. But this was no reason why the question to Livings — who for some time had him in custody, and testified to his behavior during that time — seeking to show that defendant’s case was as bad as any he (the sheriff) had ever had in jail, should have been allowed. Comparisons were of no consequence; the only proper question being whether defendant understoood the nature of his. act, or, understanding, was unable to refrain from its commission.
Sheriff Livings was properly allowed to state his opinion that defendant was sane at the time of the trial, and had been so since his return from, the Insane Hospital at Tuscaloosa, to which, for a .time, he had been committed shortly after the killing for which he was on trial. The probative force of this testimony as shedding light on the issue presented of insanity at the time of the killing was a matter for the jury.
Of the three wounds upon the body of deceased, one entered his head through the jaw, another through the back of the neck. Fellows, the undertaker, who prepared the body for burial, testified that two bullets fell
out of the mouth of deceased, and that the two wounds described above went into the mouth of deceased, but not through. This he knew, the inference is, because he, with a-physician, probed the wounds. The objection to this testimony was without merit.
Defendant’s witness Blair was in jail at the same time with defendant, and helped the jailer care for him. He testified to defendant’s condition and behavior during the time, and testified that he was “foolish and crazy.” There was rio error in allowing the state to have an answer from this witness on cross-examination to the effect that he had pleaded insanity in his own case. The answer tended to show what manner of man the witness was, and the value of his opinion on the subject of defendant’s insanity. It was competent on-cross-examination.
If there was error in permitting the state to show on what charge Charlie Tillis was confined in jail, as there probably was, even on cross-examination — Tillis having testified to the insanity of defendant on his observation of defendant during that time— such error was corrected as well as it could be by the court on the next day of the trial. This method of curing error has been regarded by this court with cautious disapproval; but a clear instruction to the jury to disregard testimony erroneously admitted in the first instance will ordinarily suffice. Maryland Casualty Co. v. McCallum, 200 Ala. 156, 75 So. 902; Smith v. State, 183 Ala. 21, 62 So. 864; Green v. State, 96 Ala. 32, 11 So. 478; Jackson v. State, 94 Ala. 85, 10 So. 509. In the present case the testimony of the witness was of such relative unimportance, in the great mass of testimony adduced by the defendant, that the court thinks the exception reserved should not be allowed to work a reversal of the judgment of guilt.
George McQueen, a witness for defendant, testified to defendant’s erratic behavior on a certain occasion when the witness was trading in the store of deceased where defendant was a clerk. Defendant’s offer to show that the witness afterwards mentioned the circumstance to his wife was properly excluded as hearsay.
To ask the witness Fletcher, who undertook to testify to defendant’s insanity, and who had had business transactions with defendant while the latter was employed at the packing house, whether he transacted such business in a correct way was permissible on cross-examination.
The hypothetical question as to defendant’s mental state, propounded to Dr. Underwood, was properly disallowed, because it did not fairly hypothesize the facts shown in evidence, and seemed .to invite the witness’ judgment that defendant was insane at the time of the killing, on the ground that another physician had testified that he was insane.
The question put to the witness Marian Jackson by the defendant, “Why didn’t you sleep?” was excluded under the familiar rule in this state that excludes statements of uncommunicated motives, purposes, mental operations, except on cross-examination. It was of trifling importance in any.event.
The error, if error, in the state’s question to Wiley Kilpatrick, was cured under the rule stated above in respect to the examination of the witness Charlie Tillis.
We think the
testimony oí
Dr. Faulk, who was connected with the Alabama Insane Hospital at Tuscaloosa during the time that defendant was there, to the effect that “he tried to escape,” and “he tried to escape at night,” was the competent statement of a collective fact, and could in no event work a reversal, since the facts, fully justifying the witness, were stated by this and other witnesses, and were not denied.
Dr. Faulk was an expert on the subject of insanity. He had observed defendant for some months while the latter was at the hospital, and was properly allowed to give his opinion that defendant 'was feigning insanity.
It was competent for Dr. Blair, who knew defendant and visited him in jail, to1 state his opinion that on that occasion he saw nothing to indicate defendant’s insanity. The action of the trial court admitting this evidence cannot be held for reversible error. Jones v. State, 181 Ala. 63, 61 So. 434.
C. M.
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SAYRE, J.
The indictment against the prisoner was returned on June 4, 1923, by a grand jury which had been duly organized prior to February 26, 1923, and on the last-named day had been recessed subject to the order of the court. By an order spread upon the minutes of the court, the previously organized grand jury were called into session on June 4th, and on that day, as we have noted, returned the indictment in this cause. The proceeding thus shown was in accord with the statute (section 8665 of the Code of 1923), and was free from error.
Defendant was on trial for the killing of John L. Knox. The evidence objected to in assignments of error 39 and 40 tended to show threats and expressions of ill will by defendant against deceased, and was properly allowed to go to the jury. The fact that one of these threats was conditional, and that the other was directed against some unnamed person, who is referred to merely as being of canine lineage on the maternal side, did not render them inadmissible. Cribbs v. State, 86 Ala. 613, 6 So. 109; Ford v. State, 71 Ala. 385. The jury could have found no difficulty in inferring that deceased was the person against whom such threats were intended.
It appeared that defendant, a few moments after he had shot and killed Knox, also fired two shots at one Jernigan, a policeman of the town of Andalusia, and wounded him. There was no error in allowing the sheriff, Livings, to testify that defendant’s first remark after he was taken into custody —a few minutes after the killing of Knox and the wounding of Jernigan — was: “That” (referring to Jernigan with an opprobrious epithet) “was the-I wanted.” This remark showed hostility to Jernigan (Smith v. State, 183 Ala. 25, 62 So. 864) and if defendant, when killing Knox, was venting his hostility against Jernigan, it was well for the jury to be enabled properly to characterize the act, even though the act and its malice were directed against different persons.
Defendant pleaded “not guilty by reason of insanity,” as well as “not guilty” and the burden of the evidence introduced by him was directed to the proposition that he was insane at the time. But this was no reason why the question to Livings — who for some time had him in custody, and testified to his behavior during that time — seeking to show that defendant’s case was as bad as any he (the sheriff) had ever had in jail, should have been allowed. Comparisons were of no consequence; the only proper question being whether defendant understoood the nature of his. act, or, understanding, was unable to refrain from its commission.
Sheriff Livings was properly allowed to state his opinion that defendant was sane at the time of the trial, and had been so since his return from, the Insane Hospital at Tuscaloosa, to which, for a .time, he had been committed shortly after the killing for which he was on trial. The probative force of this testimony as shedding light on the issue presented of insanity at the time of the killing was a matter for the jury.
Of the three wounds upon the body of deceased, one entered his head through the jaw, another through the back of the neck. Fellows, the undertaker, who prepared the body for burial, testified that two bullets fell
out of the mouth of deceased, and that the two wounds described above went into the mouth of deceased, but not through. This he knew, the inference is, because he, with a-physician, probed the wounds. The objection to this testimony was without merit.
Defendant’s witness Blair was in jail at the same time with defendant, and helped the jailer care for him. He testified to defendant’s condition and behavior during the time, and testified that he was “foolish and crazy.” There was rio error in allowing the state to have an answer from this witness on cross-examination to the effect that he had pleaded insanity in his own case. The answer tended to show what manner of man the witness was, and the value of his opinion on the subject of defendant’s insanity. It was competent on-cross-examination.
If there was error in permitting the state to show on what charge Charlie Tillis was confined in jail, as there probably was, even on cross-examination — Tillis having testified to the insanity of defendant on his observation of defendant during that time— such error was corrected as well as it could be by the court on the next day of the trial. This method of curing error has been regarded by this court with cautious disapproval; but a clear instruction to the jury to disregard testimony erroneously admitted in the first instance will ordinarily suffice. Maryland Casualty Co. v. McCallum, 200 Ala. 156, 75 So. 902; Smith v. State, 183 Ala. 21, 62 So. 864; Green v. State, 96 Ala. 32, 11 So. 478; Jackson v. State, 94 Ala. 85, 10 So. 509. In the present case the testimony of the witness was of such relative unimportance, in the great mass of testimony adduced by the defendant, that the court thinks the exception reserved should not be allowed to work a reversal of the judgment of guilt.
George McQueen, a witness for defendant, testified to defendant’s erratic behavior on a certain occasion when the witness was trading in the store of deceased where defendant was a clerk. Defendant’s offer to show that the witness afterwards mentioned the circumstance to his wife was properly excluded as hearsay.
To ask the witness Fletcher, who undertook to testify to defendant’s insanity, and who had had business transactions with defendant while the latter was employed at the packing house, whether he transacted such business in a correct way was permissible on cross-examination.
The hypothetical question as to defendant’s mental state, propounded to Dr. Underwood, was properly disallowed, because it did not fairly hypothesize the facts shown in evidence, and seemed .to invite the witness’ judgment that defendant was insane at the time of the killing, on the ground that another physician had testified that he was insane.
The question put to the witness Marian Jackson by the defendant, “Why didn’t you sleep?” was excluded under the familiar rule in this state that excludes statements of uncommunicated motives, purposes, mental operations, except on cross-examination. It was of trifling importance in any.event.
The error, if error, in the state’s question to Wiley Kilpatrick, was cured under the rule stated above in respect to the examination of the witness Charlie Tillis.
We think the
testimony oí
Dr. Faulk, who was connected with the Alabama Insane Hospital at Tuscaloosa during the time that defendant was there, to the effect that “he tried to escape,” and “he tried to escape at night,” was the competent statement of a collective fact, and could in no event work a reversal, since the facts, fully justifying the witness, were stated by this and other witnesses, and were not denied.
Dr. Faulk was an expert on the subject of insanity. He had observed defendant for some months while the latter was at the hospital, and was properly allowed to give his opinion that defendant 'was feigning insanity.
It was competent for Dr. Blair, who knew defendant and visited him in jail, to1 state his opinion that on that occasion he saw nothing to indicate defendant’s insanity. The action of the trial court admitting this evidence cannot be held for reversible error. Jones v. State, 181 Ala. 63, 61 So. 434.
C. M. Searcy, for the state, was permitted to testify that he had been employed by deceased in the same business with defendant, to state the duties of defendant in that business, his manner of discharging them, and that on the day of the homicide defendant had made a number of entries evidencing transactions by himself; the same being noted by the witness, for the information of the jury, on the books where they were to be found. There was no error in this. Nor was there error in the court’s refusal to limit this testimony to the issue of insanity vel non. It was relevant to nothing else, nor was there any other real issue in the cause, nor does it appear that the limitation suggested by defendant would have been anything more than a useless ceremony or of any possible benefit to defendant.
The witness J. C. Coursey testified for the state that he was in the store of deceased ■ at the time, and witnessed the killing of deceased by defendant. Defendant’s contention, supported by evidence, was that Coursey, who lived at some distance from Andalusia, where deceased carried on his business, was not in Andalusia or the place of business of deceased on that day, and so that his testimony was false. To meet this contention, and the evidence in support of it, the state was permitted to show that on the date in question Coursey received from Riley an order on deceased for $6 worth of merchandise, and circumstances tending to show that on that day
the witness had been in the deceased’s place of business, probably just before and at the time of' the killing, viz. that the order was found on the file kept by- deceased, and had been filled on the day after his burial, the store having been closed to business 'in the meantime — all this without error; and for like reasons the testimony of the witness Riley that he gave the order on the day of its date was relevant and material.
Steve Worthington was a barber. The defense had introduced evidence of some antics by defendant in the barber shop as going to show an unsettled state of mind. In rebuttal of this, it was of course competent for the state to show that a brother of defendant was the person who had engaged in the performances which had been attributed,to defendant.
Counsel engaged in the prosecution should riot have referred to the fact that defendant had not told the jury whether Coursey was present at the homicide, thus in a way calling attention to the fact that defendant had failed to testify in his own behalf. The statute (section 5632 of the Code of 1923) provides that the failure of a defendant in a criminal case to testify in his own behalf shall not create any presumption against him, nor be the subject of comment by counsel. But the court told the jury that the argument was improper, and that they should not allow it to have any weight whatever in their consideration of the case. We are unable to say that the error of counsel in this case was remediless, or that the court failed to adopt a timely and efficient corrective, and hold therefore that the remark of counsel affords no just ground of reversal.
Charges 1, 2, and 4, requested by defendant, were properly refused. They sought to instruct the jury that they should acquit defendant if they should find him to have been afflicted with a disease of the mind or was “otherwise insane” at the time of the offense charged. This was no proper definition of legal responsibility. Aside from eases in which the defendant is wholly incapable of distinguishing between right and wrong, as applied to the particular act, the insanity which will excuse must be the result of mental disease. Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193. But these requested charges would have broadened the area of nonresponsibility, and that without any definition of its limits.
Among other faults, charges 3, 5, 6, 9, 10, and 11, refused to defendant, had a decided tendency to lead the jury to accept, as a sufficient excuse for the killing of deceased, that momentary, emotional, or so-called moral, insanity, not associated with mental disease, which has no recognition in the law of this state. Hall v. State, 208 Ala. 199, 94 So. 59; Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20; Parsons v. State, supra.
Charge 8 tendqd to create the impression that defendant might be acquitted on the ground of drunkenness only. It was therefore misleading. The evidence • may have justified a finding that defendant was drunk at the time of the homicide, but that would not have excused his act, nor was it clear that defendant was drunk. The jury, under the evidence, might have found that defendant was only slightly under the influence of an intoxicant — a condition not usually spoken of as drunkenness. Charges 20, 21, and 22 were properly refused.
Charge 26 was well refused. The shooting of Jernigan, an officer of the law, followed immediately upon the killing of deceased, and defendant’s remark about Jernigan a few minutes later (referred to herein-above), were competent as illustrating the mind of defendant when shooting deceased, and were properly to be considered in that connection. So as to charge A2.
There was no specific burden on the state to prove the fact that the witness Coursey was on the scene of the homicide by testimony other than Coursey’s, as charge A, seems to assert, and for this reason that charge was refused without error. Charge B was fairly covered by the court’s oral charge. The state’s case by no means depended upon the testimony of Coursey, and hence charge A1 was refused without error.
Charge A7 was properly refused, for the reason that drunkenness is not insanity, nor is it an excuse for crime. Nor, assuming that defendant was “crazy drunk” — an assumption not supported by the evidence, in our opinion — was that insanity or sufficient excuse. Drunkenness so excessive as to paralyze the mental faculties, rendering one incapable of premeditation or malice, may, in extreme cases, reduce a homicide from murder to manslaughter. King v. State, 90 Ala. 616, 8 So. 856. But that is not the proposition of the charge under consideration.
Charge A8, like charge 8, was misleading. It failed to discriminate between drunkenness and insanity. It tended to confuse the two subjects in the mind of the jury. It was well refused. Like considerations serve to justify the refusal of charges CC and DD.
We are very clear to the conclusion that there was no error in the ruling by which the court denied defendant’s motion for a new trial. The evidence furnishes ample justification for the verdict and judgment, and, this being the case, there was of course no error in refusing the general charge requested by defendant. ,
The record has had due consideration, and we have stated our conclusion as to each exception reserved, at unnecessary length perhaps. We have found no error to reverse.
Accordingly the judgment must be affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.