The defendant was indicted for murder in the first degree. On January 5, 1920, the defendant was duly and legally arraigned upon this indictment, and, being present in open court and attended by his counsel, he pleaded not guilty, and the 9th day of January, 1920, was set as the day for the trial. On that day (January 9, 1920) the defendant for the first time filed a plea in abatement to the indictment. The court sustained the motion of the solicitor to strike said plea, upon the grounds that the defendant had on a prior day of the court pleaded to the merits of the indictment and that therefore his plea in abatement came too late. This ruling of the court is insisted upon as being error, but under the statute (Code 1907, § 7573) and several decisions of this court and the Supreme Court it appears that the ruling was without error. Crawford v. State, 112 Ala. 1,21 So. 214; May v. State, 115 Ala. 14, 22 So. 611; Rogers v. State, 166 Ala. 10, 52 So. 33; Wise v. State, 11 Ala. App. 72,66 So. 128; 4 Mich. Ala. Dig. p. 113, sec. 176.
The motion to quash the venire was properly overruled. Acts 1909, § 29, p. 305; Clarence Reeves, alias Cecil Welton, v. State, 17 Ala. App. 684, 88 So. 197; Sallie Garner v. State,206 Ala. 56, 89 So. 69.
On cross-examination of the sheriff, George Mitchell, and the deputy sheriff, Dewey Mitchell, the court sustained the state's objections to numerous questions propounded by defendant's counsel to these witnesses, by which the defendant sought to show the whereabouts of one Aaron Black, the negro man who, it was proven without dispute, bought a pint of whisky from defendant in the presence of deceased and Deputy Sheriff Dewey Mitchell on the night of and just immediately before the killing of Anderson. In this there was no error. The person in question had not been ordered subpœnaed by either side as a witness in the case, and it does not appear how his whereabouts at the time of the trial could shed any light upon the issues involved.
If the purpose of this cross-examination was, as stated by the defendant's counsel, "I am asking that, to know where he is, in order to use him as a witness," this would not be sufficient to show the relevancy or even admissibility of such testimony, as no request was made by defendant that a subpœna be issued for this man as a witness before entering upon the trial or during the progress thereof. The well-recognized rule is that a wider latitude is allowable on cross-examination that. upon the direct examination of a witness. This latitude is usually permissible for the purpose of testing the memory, sincerity, etc., of the witness, and while no universal rule can be laid down, it has been always held that this is a matter which necessarily must be left largely to the discretion of the trial court, and unless such discretion is abused the rulings of the trial court will not be revised on appeal. No such abuse is shown by the record here, and there was no error of a prejudicial nature committed by the court in this connection.
Other rulings of the court upon the testimony, to which exceptions were reserved, have been examined, and are free from error.
At the request of defendant, the charge of the court to the jury was made in writing. This charge has had our very careful consideration, and we are of the opinion that the criticism to the effect that portions of the charge were upon the effect of the evidence, and therefore error, is not well taken. Murray v. State, 13 Ala. App. 175, 69 So. 354. We are also of the opinion that the charge when taken and considered as a whole, and it must be thus considered, is free from error prejudicial to the substantial rights of the defendant. The court appears to have fairly stated the tendencies of the evidence on both sides, as well as the law applying to the theory relied upon both by the state and the defendant, and under this charge it was for the jury to say whether the version of the state or that of the defendant was correct.
Blevine v. State, 204 Ala. 476, 85 So. 817.
In the refusal of several written charges requested by defendant, the court indorsed upon each of these charges the reason for its refusal. This is a wise and proper precaution, and tends to assist this court in passing upon questions of this character. Each charge refused to defendant was properly refused, and the reasons assigned by the trial judge for their refusal appear to be well stated. Charge 1 was elliptical and argumentative. Charge 5 does not state the law correctly, and the remaining refused charges are each clearly upon the effect of the evidence, as stated by the trial judge in passing upon them. Their refusal was without error.
Finding no error in the record, the judgment of conviction is affirmed.
Affirmed.
On Rehearing.
The several strong and vigorous briefs filed in support of the application for rehearing require us to make some answer thereto.
Counsel for appellant decline to insist upon a review of the opinion in so far as the plea in abatement and motion to quash the venire are concerned, and expressly decline to insist upon the right of the defendant to require the sheriff to designate the present whereabouts of Aaron Black, in order that Aaron Black might be summoned as a witness. Counsel now concede that they should have had a subpœna issued for Aaron Black before undertaking to force an examination of the sheriff as to this matter.
While the extent of cross-examination of witnesses is in a large measure left to the discretion of the trial court, which rule of law is stated in the original opinion, we of course do not say, nor intend to decide, that that discretion could be used for the purpose of preventing the introduction of competent and relevant testimony on the trial of a case. A re-examination of the facts disclosed by the record fails to show that any of the rulings of the trial court now complained of resulted in the exclusion of any competent or relevant testimony on the trial of this case.
The undisputed evidence in this case, save the mere conclusion of the defendant that he thought that the sheriff and his deputies were robbers, shows the defendant to be guilty of murder in the second degree at least. Whether the sheriff knew the negro to whom defendant was selling the liquor in violation of law at the time of the fatal shooting could, under the evidence in this case, shed no possible light upon any disputed question at issue, nor could it tend to prove the guilt or innocence of the defendant, or mitigate the offense.
If it be conceded that the sheriff carried the negro out to the scene of killing on the night of the killing, this fact would not have any legitimate bearing upon the guilt or innocence of the defendant, or tend in the least to mitigate the crime. The guilt or fault of the defendant in killing the deputy sheriff, as it is conceded he did, could in no wise or degree be made to depend upon the fact whether the sheriff or his deputy knew the negro to whom the defendant was making the illegal sale, or whether or not he came out there with the sheriff and his posse.
Free access — add to your briefcase to read the full text and ask questions with AI
The defendant was indicted for murder in the first degree. On January 5, 1920, the defendant was duly and legally arraigned upon this indictment, and, being present in open court and attended by his counsel, he pleaded not guilty, and the 9th day of January, 1920, was set as the day for the trial. On that day (January 9, 1920) the defendant for the first time filed a plea in abatement to the indictment. The court sustained the motion of the solicitor to strike said plea, upon the grounds that the defendant had on a prior day of the court pleaded to the merits of the indictment and that therefore his plea in abatement came too late. This ruling of the court is insisted upon as being error, but under the statute (Code 1907, § 7573) and several decisions of this court and the Supreme Court it appears that the ruling was without error. Crawford v. State, 112 Ala. 1,21 So. 214; May v. State, 115 Ala. 14, 22 So. 611; Rogers v. State, 166 Ala. 10, 52 So. 33; Wise v. State, 11 Ala. App. 72,66 So. 128; 4 Mich. Ala. Dig. p. 113, sec. 176.
The motion to quash the venire was properly overruled. Acts 1909, § 29, p. 305; Clarence Reeves, alias Cecil Welton, v. State, 17 Ala. App. 684, 88 So. 197; Sallie Garner v. State,206 Ala. 56, 89 So. 69.
On cross-examination of the sheriff, George Mitchell, and the deputy sheriff, Dewey Mitchell, the court sustained the state's objections to numerous questions propounded by defendant's counsel to these witnesses, by which the defendant sought to show the whereabouts of one Aaron Black, the negro man who, it was proven without dispute, bought a pint of whisky from defendant in the presence of deceased and Deputy Sheriff Dewey Mitchell on the night of and just immediately before the killing of Anderson. In this there was no error. The person in question had not been ordered subpœnaed by either side as a witness in the case, and it does not appear how his whereabouts at the time of the trial could shed any light upon the issues involved.
If the purpose of this cross-examination was, as stated by the defendant's counsel, "I am asking that, to know where he is, in order to use him as a witness," this would not be sufficient to show the relevancy or even admissibility of such testimony, as no request was made by defendant that a subpœna be issued for this man as a witness before entering upon the trial or during the progress thereof. The well-recognized rule is that a wider latitude is allowable on cross-examination that. upon the direct examination of a witness. This latitude is usually permissible for the purpose of testing the memory, sincerity, etc., of the witness, and while no universal rule can be laid down, it has been always held that this is a matter which necessarily must be left largely to the discretion of the trial court, and unless such discretion is abused the rulings of the trial court will not be revised on appeal. No such abuse is shown by the record here, and there was no error of a prejudicial nature committed by the court in this connection.
Other rulings of the court upon the testimony, to which exceptions were reserved, have been examined, and are free from error.
At the request of defendant, the charge of the court to the jury was made in writing. This charge has had our very careful consideration, and we are of the opinion that the criticism to the effect that portions of the charge were upon the effect of the evidence, and therefore error, is not well taken. Murray v. State, 13 Ala. App. 175, 69 So. 354. We are also of the opinion that the charge when taken and considered as a whole, and it must be thus considered, is free from error prejudicial to the substantial rights of the defendant. The court appears to have fairly stated the tendencies of the evidence on both sides, as well as the law applying to the theory relied upon both by the state and the defendant, and under this charge it was for the jury to say whether the version of the state or that of the defendant was correct.
Blevine v. State, 204 Ala. 476, 85 So. 817.
In the refusal of several written charges requested by defendant, the court indorsed upon each of these charges the reason for its refusal. This is a wise and proper precaution, and tends to assist this court in passing upon questions of this character. Each charge refused to defendant was properly refused, and the reasons assigned by the trial judge for their refusal appear to be well stated. Charge 1 was elliptical and argumentative. Charge 5 does not state the law correctly, and the remaining refused charges are each clearly upon the effect of the evidence, as stated by the trial judge in passing upon them. Their refusal was without error.
Finding no error in the record, the judgment of conviction is affirmed.
Affirmed.
On Rehearing.
The several strong and vigorous briefs filed in support of the application for rehearing require us to make some answer thereto.
Counsel for appellant decline to insist upon a review of the opinion in so far as the plea in abatement and motion to quash the venire are concerned, and expressly decline to insist upon the right of the defendant to require the sheriff to designate the present whereabouts of Aaron Black, in order that Aaron Black might be summoned as a witness. Counsel now concede that they should have had a subpœna issued for Aaron Black before undertaking to force an examination of the sheriff as to this matter.
While the extent of cross-examination of witnesses is in a large measure left to the discretion of the trial court, which rule of law is stated in the original opinion, we of course do not say, nor intend to decide, that that discretion could be used for the purpose of preventing the introduction of competent and relevant testimony on the trial of a case. A re-examination of the facts disclosed by the record fails to show that any of the rulings of the trial court now complained of resulted in the exclusion of any competent or relevant testimony on the trial of this case.
The undisputed evidence in this case, save the mere conclusion of the defendant that he thought that the sheriff and his deputies were robbers, shows the defendant to be guilty of murder in the second degree at least. Whether the sheriff knew the negro to whom defendant was selling the liquor in violation of law at the time of the fatal shooting could, under the evidence in this case, shed no possible light upon any disputed question at issue, nor could it tend to prove the guilt or innocence of the defendant, or mitigate the offense.
If it be conceded that the sheriff carried the negro out to the scene of killing on the night of the killing, this fact would not have any legitimate bearing upon the guilt or innocence of the defendant, or tend in the least to mitigate the crime. The guilt or fault of the defendant in killing the deputy sheriff, as it is conceded he did, could in no wise or degree be made to depend upon the fact whether the sheriff or his deputy knew the negro to whom the defendant was making the illegal sale, or whether or not he came out there with the sheriff and his posse. Moreover, counsel for appellant insist that they had the right to have the sheriff and his son answer the question whether or not he made arrangements with the negro to go out there and buy liquor from this man, or somebody, and to compel them to answer the question whether or not the negro, Aaron Black, was working and doing what he did with the knowledge and consent of the sheriff and his deputy.
Pretermitting the question as to whether or not, under the evidence of this case, such proof was immaterial and irrelevant; but, even if it were not, no possible injury was done the appellant, for the reason that both the sheriff and his deputy positively and repeatedly denied that they did carry the negro out there, or that he was acting under instruction, or with their knowledge or consent, in buying whisky from defendant or any one else on the night of the fatal difficulty. On page 39 of the transcript, the son of the sheriff, who was his deputy, testified on cross-examination:
"We did not carry the negro out with us. We did not arrange for him to come. I did not know that any of the party had arranged for him to come."
And at the top of page 40 of the transcript he testified, also on cross-examination, as follows:
"The negro was not in the employ of the jail that night, and he was not in my employ. He was not in the employ of Carl Anderson."
And at page 43 of the record the sheriff himself testified:
"I did not know him, any more than I know most all negroes. I had not seen him before that night that I know of. I had not talked with him before I went out there."
And at the top of page 44 he testified:
"The negro was not in my employ that night, nor was he working under my directions."
So it affirmatively appears that the sheriff and his deputy did in substance answer every question asked them as to which complaint is now made. After the sheriff had testified that the negro was not in his employ that night, and that he was not working under his direction, counsel for defendant immediately
thereafter asked the witness the following question:
"Was he working and doing what he did with your knowledge and consent?"
The witness having answered this question specifically and repeatedly, of course, the trial court could not be put in error for excusing him from answering it further.
It is very true, as counsel for appellant contend, that the trial court cannot refuse a correct charge, requested in writing, merely because it is upon the effect of the evidence; yet, if the charge was properly refused, the fact, if it be a fact, that the court assigned an improper reason, would not make its refusal error. It is certain that such of the requested charges for the defendant which were refused by the trial court were properly so refused. The proper reason was assigned as for the refusal of some of them, but it is probable that an improper reason was assigned as to the refusal of others; and to this extent only do we desire to modify or qualify anything that was said in the opinion before. Several of the refused charges, the refusal of which is insisted upon as error, were clearly argumentative, and some of them clearly invaded the province of the jury, in that they requested the court to state as a matter of law that which clearly was a question for the jury under the evidence.
So far as concerns the insistence of appellant for error respecting portions of the oral charge to which exceptions were reserved, we deem it unnecessary to say anything further than was said in the original opinion, which seems to answer all the contentions of the appellant. It may not be out of place, however, to say that those portions of the oral charge to which exceptions were reserved were not stated by the court as facts, but were stated to the jury only as showing the contention of the state and of the defense as to respective theories of the case and parts of the evidence. This is not only proper, but is often necessary, in order that the jury may fairly understand and weigh the evidence in support of and against the several contentions or theories of the state and the defense.
We cannot agree with counsel for appellant in their contention that the undisputed evidence in this record affords nothing to show that the defendant had any knowledge of the identity of the officers, or that they were attempting to arrest him for selling prohibited liquors, or that he was resisting a lawful arrest. It was clearly open to the jury to infer that the defendant, at the time he fired the fatal shot, knew that the persons at whom he was shooting were then attempting to arrest him for the violation of the prohibition law. He certainly knew that he was then violating the law and was liable to arrest; and there is evidence in the record to show that the officers informed him of the fact that they were officers and demanded his arrest before the fatal shot was fired. Dewey Mitchell, the son of the sheriff, who was attempting to arrest the defendant when he fired the fatal shot, among other things testified as follows:
"Tom Stevenson turned, coming towards us. I flashed my light, and told him to throw up his hands and consider himself under arrest. I had my light in my left hand. My pistol was down by my side in my right hand. Stevenson came up with his pistol, with both hands up even with his face. He did not say anything. I said: 'Don't shoot; it is the officers.' Then he commenced shooting, about the time I got that out of my mouth."
Moreover, there was some evidence as to threats by defendant as to what he would do if the officers ever tried to arrest him; one witness stating in substance that, about six weeks prior to the killing, defendant stated to him "that, if the officers ever came after him, they would not go back as they came," and further, "that if they arrested him he would kill them before being arrested."
With the modification of the original opinion to the extent as herein stated, we adhere to the conclusion therein announced, and must hold that the application for rehearing is not well taken, and is therefore overruled.
Application overruled.