PELHAM, P. J.
Permitting the state’s counsel to introduce the evidence of the witness E. T. McCauley, who had remained in the courtroom when it was shown that the witnesses, had been, sworn and put under the rule out of the hearing of the court, was a matter of discretion in the trial judge in which no abuse is shown. The witness McCauley was the second witness examined in behalf of the state, and no error prejudicial.to- defendant authorizing a reversal appears to have resulted. Certainly no abuse of discretion is shown, and that is the question to be considered.-Belk v. State, 10 Ala. App. 70, 64 South. 515.
The surrounding circumstances and conditions under which the statements of the defendant in the nature of confessions or declarations against interest were made, as well as the nature of the statements themselves, show them, to have been entirely voluntary, and they were properly admitted.-Dupree v. State, 148 Ala. 620, 42 South. 1004; Love v. State, 124 Ala. 82, 27 South. 217; McKinney v. State, 134 Ala. 134, 32 South. 726; Morris v. State, 146 Ala. 66, 41 South. 274; Burton v. State, 107 Ala. 108, 18 South. 284.
The character of the evidence elicited was in the nature of threats and inculpatory statements made by the [10]*10defendant shortly before and after the killing, evincing ill will or expressing a menace towards the deceased, and these may be shown independent of a predicate.— Shelton v. State, 144 Ala, 106, 42 South. 30; 1 Mayf. Dig. 262, 263, and cases there cited; Ex parte State, 181 Ala. 4, 61 South. 53.
Although the shirt worn by the deceased at the time of the killing and perforated by the shots had been laundered between the time of the fatal rencounter and the trial, they were a proper subject of evidence after they had been properly identified and this fact proven, so that the jury might have the benefit of whatever physical testimony the articles showing the bullet holes afforded in the way of illustration, explanation, or contradiction with reference to what eyewitnesses to the transaction had testified. It has long been the rule in this state, as announced by the Supreme Court, that the clothes the deceased wore at the time of the killing are admissible in evidence, and the rule is not to be changed simply because the clothes have been washed, if they afford other illustrative evidence aside from such marks or stains as may have been removed in the cleansing process, such as bullet holes.—Pate v. State, 150 Ala. 10, 43 South. 343.
There was no abuse of the judicial discretion in permitting the state’s counsel to propound questions to the defendant on cross-examination as to where he got the pistol with which he did the shooting, how many cartridges he bought at the time, which pocket he had the pistol in, etc. The law allows great latitude on cross-examiantion, and its extent is largely a matter of the trial court’s discretion.—Smiley v. Hooper, 147 Ala. 646, 41 South. 660. The examination may extend even to remote matters for the purpose of testing the credit to be accorded the witness, his memory or accuracy.—Amos v. State, 96 Ala. 120; 11 South. 424.
[11]*11Other rulings on the evidence are without prejudicial error, and do not, we think, require discussion.
Charges 4, 7, 8, 9, 27, and 29, refused to the defendant, are erroneous and misleading in that they instruct the jury, or might well have been understood by the jury as instructing,, that the presumptions of law therein predicated as 'to the defendant’s innocence obtain even after the jury has heard the evidence which may have convinced the jury to the contrary beyond a reasonable doubt.—McEwen v. State, 152 Ala. 38, 44 South. 619.
Charge No. 10 is involved (Turner v. State, 160 Ala. 40, 49 South. 828) and is not an intelligible statement of any proposition of law. The offense “charged” is shown by the indictment, and the conduct of the deceased at the' time of the difficulty could not be looked to for the purpose of ascertaining the degree of the offense charged against the defendant. The use of the last five words in this charge in the connection in which they appear also tends to make the charge of uncertain meaning.
Instructions which assert that the jury may look to certain evidence are properly refused as argumentative and as giving undue prominence to certain portions of the testimony.—Shelton v. State, 144 Ala. 106, 42 South. 30.
Charges No. 12 is in the same language as a charge in Hatch's Case, 144 Ala. 50, 40 South. 113, except in the use of the words “self-defense” in place of the word “alibi” as used in the charge approved in Hatch’s Case. An alibi is a general traverse of the material averment of the indictment that the defendant committed the crime charged against him (Albritton v. State, 94 Ala. 76, TO South. 426), and such a charge, while it might be held .good as not singling out part of the evidence, when ■ [12]*12applied to a defense that is a general denial or traverse of the material averment in the indictment that the defendant did the act charged, could not for the same reason and on the same principle be held good as applicable to the charge in this case, substituting “self-defense” for “alibi.” Self-defense is a plea in the nature of a confession and avoidance, and does not traverse the averment of doing the act charged, but confesses and seeks to justify doing the act as legal and avoid any evil consequences from having done it because of having acted in self-defense.
But, aside from this, the charge is bad in that it submits a question of law to the jury. It has long been held, that a charge referring to the jury the question of self-defense and leaving to their determination what constitutes the elements of self-defense is erroneous.— Davis v. State, 8 Ala. App. 147, 62 South. 1027; Plant v. State, 140 Ala. 52, 57, 37 South. 159; Roden v. State, 97 Ala. 54, 56, 12 South. 419; Miller v. State, 107 Ala. 40, 19 South. 37; Gilmore v. State, 126 Ala. 30, 39 28 South. 595; Adams v. State, 133 Ala. 166, 175, 31 South. 851; Smith v. State, 130 Ala. 95, 98, 30 South. 432; Tarver v. State, 9 Ala. App. 17, 20, 64 South. 161; Powell v. State, 5 Ala. App. 75, 82, 59 South. 530; Garth v. State, 8 Ala. App. 23, 26, 62 South. 383; Greer v. State, 156 Ala. 15, 19, 47 South. 300.
The charge is misleading, it seems to us, in not stating the conditions under which the state is called upon to prove freedom from fault and certain other elements comprehended in the defendant’s plea of self-defense.— Crumpton v. State, 167 Ala. 4, 52 South. 605; Etheridge v. State, 141 Ala. 29, 37 South. 337; Allen v. State 148 Ala. 588, 42 South. 1006. We may also call attention to the fact that, while not mentioning the Hatch Case, supra, wherein the Supreme Court by a divided court ap[13]*13proved this charge, the Supreme Court, in the late case of McClain v. State, 182 Ala. 67, 62 South. 241, has condemned the identical charge by an undivided court, the charge being designated as £Q” in the latter case.
■ Charges 15 and 18 single out and invite the attention of the jury to only that part of the evidence as to the defendant’s having acted in self-defense.
Free access — add to your briefcase to read the full text and ask questions with AI
PELHAM, P. J.
Permitting the state’s counsel to introduce the evidence of the witness E. T. McCauley, who had remained in the courtroom when it was shown that the witnesses, had been, sworn and put under the rule out of the hearing of the court, was a matter of discretion in the trial judge in which no abuse is shown. The witness McCauley was the second witness examined in behalf of the state, and no error prejudicial.to- defendant authorizing a reversal appears to have resulted. Certainly no abuse of discretion is shown, and that is the question to be considered.-Belk v. State, 10 Ala. App. 70, 64 South. 515.
The surrounding circumstances and conditions under which the statements of the defendant in the nature of confessions or declarations against interest were made, as well as the nature of the statements themselves, show them, to have been entirely voluntary, and they were properly admitted.-Dupree v. State, 148 Ala. 620, 42 South. 1004; Love v. State, 124 Ala. 82, 27 South. 217; McKinney v. State, 134 Ala. 134, 32 South. 726; Morris v. State, 146 Ala. 66, 41 South. 274; Burton v. State, 107 Ala. 108, 18 South. 284.
The character of the evidence elicited was in the nature of threats and inculpatory statements made by the [10]*10defendant shortly before and after the killing, evincing ill will or expressing a menace towards the deceased, and these may be shown independent of a predicate.— Shelton v. State, 144 Ala, 106, 42 South. 30; 1 Mayf. Dig. 262, 263, and cases there cited; Ex parte State, 181 Ala. 4, 61 South. 53.
Although the shirt worn by the deceased at the time of the killing and perforated by the shots had been laundered between the time of the fatal rencounter and the trial, they were a proper subject of evidence after they had been properly identified and this fact proven, so that the jury might have the benefit of whatever physical testimony the articles showing the bullet holes afforded in the way of illustration, explanation, or contradiction with reference to what eyewitnesses to the transaction had testified. It has long been the rule in this state, as announced by the Supreme Court, that the clothes the deceased wore at the time of the killing are admissible in evidence, and the rule is not to be changed simply because the clothes have been washed, if they afford other illustrative evidence aside from such marks or stains as may have been removed in the cleansing process, such as bullet holes.—Pate v. State, 150 Ala. 10, 43 South. 343.
There was no abuse of the judicial discretion in permitting the state’s counsel to propound questions to the defendant on cross-examination as to where he got the pistol with which he did the shooting, how many cartridges he bought at the time, which pocket he had the pistol in, etc. The law allows great latitude on cross-examiantion, and its extent is largely a matter of the trial court’s discretion.—Smiley v. Hooper, 147 Ala. 646, 41 South. 660. The examination may extend even to remote matters for the purpose of testing the credit to be accorded the witness, his memory or accuracy.—Amos v. State, 96 Ala. 120; 11 South. 424.
[11]*11Other rulings on the evidence are without prejudicial error, and do not, we think, require discussion.
Charges 4, 7, 8, 9, 27, and 29, refused to the defendant, are erroneous and misleading in that they instruct the jury, or might well have been understood by the jury as instructing,, that the presumptions of law therein predicated as 'to the defendant’s innocence obtain even after the jury has heard the evidence which may have convinced the jury to the contrary beyond a reasonable doubt.—McEwen v. State, 152 Ala. 38, 44 South. 619.
Charge No. 10 is involved (Turner v. State, 160 Ala. 40, 49 South. 828) and is not an intelligible statement of any proposition of law. The offense “charged” is shown by the indictment, and the conduct of the deceased at the' time of the difficulty could not be looked to for the purpose of ascertaining the degree of the offense charged against the defendant. The use of the last five words in this charge in the connection in which they appear also tends to make the charge of uncertain meaning.
Instructions which assert that the jury may look to certain evidence are properly refused as argumentative and as giving undue prominence to certain portions of the testimony.—Shelton v. State, 144 Ala. 106, 42 South. 30.
Charges No. 12 is in the same language as a charge in Hatch's Case, 144 Ala. 50, 40 South. 113, except in the use of the words “self-defense” in place of the word “alibi” as used in the charge approved in Hatch’s Case. An alibi is a general traverse of the material averment of the indictment that the defendant committed the crime charged against him (Albritton v. State, 94 Ala. 76, TO South. 426), and such a charge, while it might be held .good as not singling out part of the evidence, when ■ [12]*12applied to a defense that is a general denial or traverse of the material averment in the indictment that the defendant did the act charged, could not for the same reason and on the same principle be held good as applicable to the charge in this case, substituting “self-defense” for “alibi.” Self-defense is a plea in the nature of a confession and avoidance, and does not traverse the averment of doing the act charged, but confesses and seeks to justify doing the act as legal and avoid any evil consequences from having done it because of having acted in self-defense.
But, aside from this, the charge is bad in that it submits a question of law to the jury. It has long been held, that a charge referring to the jury the question of self-defense and leaving to their determination what constitutes the elements of self-defense is erroneous.— Davis v. State, 8 Ala. App. 147, 62 South. 1027; Plant v. State, 140 Ala. 52, 57, 37 South. 159; Roden v. State, 97 Ala. 54, 56, 12 South. 419; Miller v. State, 107 Ala. 40, 19 South. 37; Gilmore v. State, 126 Ala. 30, 39 28 South. 595; Adams v. State, 133 Ala. 166, 175, 31 South. 851; Smith v. State, 130 Ala. 95, 98, 30 South. 432; Tarver v. State, 9 Ala. App. 17, 20, 64 South. 161; Powell v. State, 5 Ala. App. 75, 82, 59 South. 530; Garth v. State, 8 Ala. App. 23, 26, 62 South. 383; Greer v. State, 156 Ala. 15, 19, 47 South. 300.
The charge is misleading, it seems to us, in not stating the conditions under which the state is called upon to prove freedom from fault and certain other elements comprehended in the defendant’s plea of self-defense.— Crumpton v. State, 167 Ala. 4, 52 South. 605; Etheridge v. State, 141 Ala. 29, 37 South. 337; Allen v. State 148 Ala. 588, 42 South. 1006. We may also call attention to the fact that, while not mentioning the Hatch Case, supra, wherein the Supreme Court by a divided court ap[13]*13proved this charge, the Supreme Court, in the late case of McClain v. State, 182 Ala. 67, 62 South. 241, has condemned the identical charge by an undivided court, the charge being designated as £Q” in the latter case.
■ Charges 15 and 18 single out and invite the attention of the jury to only that part of the evidence as to the defendant’s having acted in self-defense. Each of these charges submits a qiiestion of law to the jury. See authorities cited in discussion of charge 12, in O’Rear v. State, 188 Ala. 14, 66 South. 81.
Charge 21 ivas reasonably calculated to impress the jury with the belief that the court was instructing them ■ that the burden of proof ivas not on the defendant to reasonably satisfy the jury of the pressing necessity to take life under his plea of self-defense, and such is not the law.—Naugher v. State, 105 Ala. 26, and authorities cited in the opinion on page 30, 17 South. 24.
Charge 23 is patently bad.
Charge 25 invades the province of the jury. As referred to the evidence, it ivas shown that there was bad feeling existing between the defendant and deceased be-' cause of a difficulty they had engaged in the day before. There ivas also evidence tending to show that there was a likelihood of a renewal of hostilities when the parties met again. If the defendant, having armed himself since the first difficulty, crossed the street where the fatal rencounter occurred under these circumstances, knowing that he would likely meet the deceased and that there would be a renewal of the former difficulty, then he would not, as a matter of law, have a right to go to the place where he was when the killing took place. A person must not be disregardful of the consequences of any wrongful word or act, and must refrain from doing that which may encourage or provoke a difficulty.—McEwen v. State, 152 Ala. 38, 44 South. 619. Besides, [14]*14the charge states no proposition of law and is argumen- ■ tative. It was under the evidence in this case a question for the jury.
“The rule of self-defense” is not, as a matter of law. confined to the statement of that rule of law as set out in the twenty-sixth refused charge. The learned judge, from whose opinion appellants counsel call to our attention that they copied the charge (De Arman v. State, 71 Ala. 351, 359), in using the language copied into the charge was (as may readily be seen from reading the connection in which it was used) not laying down a general rule, but was only applying the applicable part of the rule of self-defense to the particular facts of the case then under discussion. To be given in charge as embodying the entire rule of law appertaining to self-defense, it would have a decidedly misleading tendency. Besides, the record shows that charges 26 and 27 were presented to the court together on the same piece of paper and refused as “one charge,” and we have heretofore condemned charge 27 as bad.
. Charge 28 is bad in that it fails to embody the other elements of self-defense. Before this burden is placed on the state, other elements of self-defense must be proven to the reasonable satisfaction of the jury by the defendant.—McBryde v. State, 156 Ala. 44, 47 South. 302, and authorities cited following a discussion of charge 1 in that case, on pages 55 and 56.
Charges 32 and 36, omit to predicate an honest or bona fide belief on the part of the defendant, as a reasonable man, of imminent impending danger.—Reid v. State, 181 Ala. 14, 61 South. 324. Given charges 24 and 31 correctly state the propositions embodied in these' charges and predicate the honest belief of the defendant.
Charge 35 singles out part of the evidence for the consideration of the jury and instructs the jury to base a. [15]*15finding on that evidence. It also incorrectly states the evidence, in that it states facts as a hypothesis for a finding that are not shown by the evidence set out in the record (Sims v. State, 146 Ala. 109, 41 South. 413) and invades the province of the jury (Crumpton v. State, 167 Ala. 4, 52 South. 605).
The killing in this case was shown, without conflict in the evidence, to have been purposely done with a deadly weapon, and charge No. 37 does not state a correct proposition of .law.—Murphy v. State, 37 Ala. 142; Commander v. State, 60 Ala. 1.
Besides, the refusal of the charge is without injury to the defendant, as the record shows the defendant ivas convicted of manslaughter in the first degree, in which express or implied malice does not enter as an ingredient of the crime.—Clarke v. State, 117 Ala. 1, 23 South. 671, 67 Am. St. Rep. 157.
Charges 38, 39, and 45 single out and give undue prominence to parts of the evidence, and are but mere arguments.
There is no presumption of law as to the requisite knowledge possessed by a person over 14 years of age not being sufficient to comprehend and appreciate the wrongfulness of his guilty act. The law makes no less “requirements,” and draws no distinctions between a person of 19 or 20 years of age and one of 30 or 32 years of age, as to their having the requisite guilty knowledge . to comprehend and appreciate wrongdoing, and the consequences of such an act. Charge 39 undertook to- draw a distinction of law unknown to the law.
Charges 42, 43 and 44 are erroneous, and properly refused in failing to set forth the constituent elements of self-defense.—Gilmore v. State, 126 Ala. 21, 28 South. 595.
The facts that the defendant had previously made threats against the deceased and had a pistol in his pos[16]*16session at the time he killed deceased, when taken in connection with all the other evidence in the case, might • have led the jury to the conclusion that the defendant was not acting in self-defense at the time of the killing, and he would therefore, in that sense, have been deprived of setting up such a defense. For this reason charges 41 and 44 are misleading.
They also invade the province of the jury. See Hays v. State, 155 Ala. 40, 46 South. 471; Smith v. State, 165 Ala. 74, 51 South. 632.
These charges are also argumentative, and properly refused on that account.—Sweatt v. State, 156 Ala. 85, 47 South. 194.
We find no reversible error in the record, and the judgment of the lower court will be affirmed.
Affirmed.