This defendant was charged by indictment with the offense of murder in the first degree, the specific charge being that he unlawfully 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 where 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. From 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 So. 119; Gafford v. State,125 Ala. 1, 28 So. 406; Rogers v. State, 117 Ala. 9,22 So. 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 instance the exceptions taken appear to be without merit.
Among the numerous witness 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 Kimbrell'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 corner."
After testifying further about the gun shells, etc., 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.
On Rehearing.
The question raised by the associate counsel for the state on this rehearing is governed by the rule announced in Phœnix Insurance Co. v. Moog,
78 Ala. 284, 56 Am. Rep. 31, this rule being:
"When a question is propounded to a witness on the stand, which calls for evidence prima facie relevant and legal, the refusal of the court to allow it is an error which will work a reversal, although the answer, or proposed answer, of the witness is not stated."
See, also, Birmingham Ry. L. P. Co. v. Barrett, 179 Ala. 274,290, 60 So. 262.
In the instant case the principal witness for the state (Terry) had testified as to what he had said, and also as to his actions at the home of the defendant on the morning next after the alleged homicide, and the testimony is without conflict that defendant's witness, Allen Davidson, was present on that occasion, and heard what was said by Terry, and saw what was done by him. The state had gone into all that was said and done on that occasion by Terry and others, and, having done so, the defendant was entitled to inquire, by way of rebuttal, of his witness what had been said and done by Terry, and to deprive him of this opportunity was an injustice. The inquiry as to the conversation had on that particular occasion, and what was in fact done by witness Terry, was not only prima facie relevant and legal, but was vital to defendant's case in rebuttal. AS before stated, it was without dispute that defendant's witness was then and there present; he was therefore competent to testify in rebuttal as to what Terry had said, and as to what he had done at that particular time and place. The general objection interposed by the state should have been overruled. We find this apt expression in the case of Mobile, J. K. C. R. R. Co. v. Hawkins, 163 Ala. 565, 588,51 So. 37, 44:
"Where plaintiff has given evidence as to a conversation, defendant may also give his version of it."
And further:
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This defendant was charged by indictment with the offense of murder in the first degree, the specific charge being that he unlawfully 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 where 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. From 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 So. 119; Gafford v. State,125 Ala. 1, 28 So. 406; Rogers v. State, 117 Ala. 9,22 So. 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 instance the exceptions taken appear to be without merit.
Among the numerous witness 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 Kimbrell'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 corner."
After testifying further about the gun shells, etc., 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.
On Rehearing.
The question raised by the associate counsel for the state on this rehearing is governed by the rule announced in Phœnix Insurance Co. v. Moog,
78 Ala. 284, 56 Am. Rep. 31, this rule being:
"When a question is propounded to a witness on the stand, which calls for evidence prima facie relevant and legal, the refusal of the court to allow it is an error which will work a reversal, although the answer, or proposed answer, of the witness is not stated."
See, also, Birmingham Ry. L. P. Co. v. Barrett, 179 Ala. 274,290, 60 So. 262.
In the instant case the principal witness for the state (Terry) had testified as to what he had said, and also as to his actions at the home of the defendant on the morning next after the alleged homicide, and the testimony is without conflict that defendant's witness, Allen Davidson, was present on that occasion, and heard what was said by Terry, and saw what was done by him. The state had gone into all that was said and done on that occasion by Terry and others, and, having done so, the defendant was entitled to inquire, by way of rebuttal, of his witness what had been said and done by Terry, and to deprive him of this opportunity was an injustice. The inquiry as to the conversation had on that particular occasion, and what was in fact done by witness Terry, was not only prima facie relevant and legal, but was vital to defendant's case in rebuttal. AS before stated, it was without dispute that defendant's witness was then and there present; he was therefore competent to testify in rebuttal as to what Terry had said, and as to what he had done at that particular time and place. The general objection interposed by the state should have been overruled. We find this apt expression in the case of Mobile, J. K. C. R. R. Co. v. Hawkins, 163 Ala. 565, 588,51 So. 37, 44:
"Where plaintiff has given evidence as to a conversation, defendant may also give his version of it."
And further:
"A witness who is competent may testify without being specifically interrogated; and in view of the time [and place] at which this testimony was offered, and the conditions then obtaining, we cannot conceive of or presume any reason that would justify its exclusion."
See, also Wefel v. Stillman, 151 Ala. 249, 44 So. 203.
In Perdue v. State, 17 Ala. App. 500, 86 So. 158, this court said:
"State witness Dr. Yielding on direct examination was permitted to testify what took place at defendant's home at the time of the arrest of this defendant and another by the sheriff, and also as to some conversation which occurred there at that time. On cross-examination of this witness the court sustained the state's objection to several questions propounded by defendant's counsel to this witness relative to the same matter. In these rulings there was error. It was competent for the defendant to cross-examine this witness on these matters, and the court should have permitted
this cross-examination. The same is true as to the direct examination of witness Frassie De Jarnette. She testified that 'the sheriff and Dr. Yielding came to my house that night.' Counsel for defendant thereupon propounded this question: 'State what, if anything, they did in your house.' The court sustained the state's objection to this question, and defendant duly and legally excepted. Upon what theory the objection was made and sustained we are unable to understand. The question was objected to, without stating any grounds upon which the objection was predicated. The question called for relevant and competent testimony, and the general objection should have been overruled. Witness Yielding had testified for the state what he and the sheriff did that night at the house of defendant, and certainly under all rules of evidence the defendant was entitled to rebut this testimony."
The point in question here is identical with the excerpt above quoted.
Application overruled.