Knott v. State

96 So. 731, 19 Ala. App. 258, 1923 Ala. App. LEXIS 128

• Court: Alabama Court of Appeals
• Decided: June 5, 1923
• Docket: 8 Div. 61.
• Status: Published

Opinion

SAMFORD, J.

Under the facts as testified to by the state’s witnesses the defendant is giiiltyof murder in the highest degree. According to the state’s evidence the defendant went to the residence of the deceased, stood in the road, called deceased to his front gate, and there shot him to death with a pistol. The defendant sought to establish self-defense, a difficulty, impending peril, inability to flee, and a present appárent necessity to take life.

While defendant was being examined as a witness, he testified that he and deceased had had trouble before the killing. The court, at the objection of the state, refused to permit defendant to testify that deceased had shot at defendant twice as defendant was running from him, on occasions previous to the difficulty in which deceased was killed. That there had been previous difficulties between deceased and defendant was relevant, but not the details of such difficulties. Autrey v. State, 190 Ala. 10, 67 South. 237; Moore v. State, 16 Ala. App. 503, 79 South. 201; Smith v. State, 197 Ala. 193, 72 South. 316.

During the testimony of the defendant he stated: “Mr. Phillips said to me in this same conversation” (referring to a conversation a short.time after a former difficulty between the parties), “ ‘Do you know that Limbaugh (deceased) mighty near got you this morning?’ ” On motion of the state this remark was excluded. This testimony .was clearly not relevant to the issues of this case, and even in case of relevancy would be a conclusion: <

Being a game warden does not of itself require defendant to go armed. Hence the court did not err in sustaining the state’s objection to the question propounded to defendant as follows: “Isn’t it a fact you took the pistol because you were a game warden in this county? ” Besides the question was leading.

The defendant offered to prove by Tom Phillips that, before the fatal difficulty he had heard deceased say: “A heap of times, Knott ought to be killed.” The state objected to this testimony, the court sustained the objection, and defendant excepted. This is not a threat, and as an expression of ill will is too general in its nature to be relevant.

That the deceased made an attempt to get out a knife and cut defendant on a previous occasion at defendant’s house, just be fore the fatal difficulty was not admissible, as being the details of a former difficulty.

There were several attempts by defendant to prove details of former difficulties between defendant and deceased. The court was not in error in its rulings excluding this testimony.

There were 52 written charges given by the court at the request of defendant, covering every phase of reasonable doubt and the doctrine of self-defense. These, taken in connection with the oral charge of the court, were amply sufficient to present to the jury the law of the case to which they were to apply the evidence. 'Besides these given charges there were 15 charges requested by defendant and refused by the court, which for convenience we have indicated by letters. Of these, A, O, D, K, L, and N, are abstract, and the propositions of law, where applicable, are included in given charges.

Refused charge B is covered by given charges 49, 51, and 52. Refused charge E is covered by given charge 48. Refused charge F is fully covered in written charges given, as to the legal proposition involved; moreover, this charge is an argument, as is also refused charge G. Refused charge H is included and covered in given charges 49, 51, and 52.

Charge I omits a freedom from fault on the part of the defendant, and charge J omits the duty of flight.

It appears from this record that the defendant has had a fair and an impartial trial before a jury of his peers, and, finding no reversible error in the record, the judgment is affirmed.

Affirmed.