Thomas v. State

139 Ala. 80

• Court: Supreme Court of Alabama
• Decided: November 15, 1903
• Status: Published

Opinion

DOWDELL, J. —

The ruling of the trial court on a motion for a new trial in a criminal cause is not reviewable on appeal. — Durrett v. State, 133 Ala. 119; Hampton v. State, lb. 180; Bondurant v. State, 125 Ala. 31; Burrage v. State, 313 Ala. 108.

There was no error in overruling the defendant’s objection to the question asked the witness Sanders Turner. The objection was general, and it appears that the objection was not made until after the question had been answered. Moreover, the testimony given in response to the question was clearly relevant, tending to show a consciousness of guilt on the part of the defendant, and an intention of flight. — Washington v. State, 106 Ala. 58.

The objection to the testimony of the witness Vassar L. Allen was general, and the court, therefore, committed no error in overruling the same. — Washington v. State, supra. Besides, it was competent for the witness, though not a physician, to testify that he was present when the deceased died under an operation performed on him at the hospital.

There was no error in that part of the oral charge excepted to by the defendant, wherein the court defined manslaughter in the first degree. — Ragland v. State, 125 Ala. 30. Nor was any error committed by the court in that part of the oral charge excepted to by the defendant, wherein the court said: “Under the instructions I have given you as to what constitutes murder in its several degrees and manslaughter in its several degrees, the defendant, if guilty at all, under the evidence in this case, would be guilty of either murder in the first degree, murder in the second degree or manslaughter in the first degree, or guilty of nothing as you may determine.’’ — Ragsdale v. State, 134 Ala. 24.

The evidence was without dispute, that the wound in-flirted by the defendant upon the deceased was a dangerous one, furthermore, that an operation was necessary. In Daughdrill v. State, 113 Ala. 84, it was said by this court: “The true doctrine is that where the wound is in itself dangerous to life, mere erroneous treatment of it, or of the Avounded man suffering from it, will afford the defendant no protection against a charge of unlawful homicide.”

There is no evidence in the case which would have authorized the court to charge upon the subject of manslaughter in the second degree.

Written charge number 1 requested by the defendant is confused. This charge hypothesizes the death of Thomas, who is the defendant. No doubt this was unintentional, and that Leonard, the deceased, Avas meant. Still, written charges are required to be given or refused as requested. The charge for the fault pointed out, if for no other, Avas properly refused.

Charge 2 requested by the defendant is argumentative and for that reason no error Avas committed in its 'refusal.

There is evidence from which the jury might Avell have found the defendant guilty of murder in the first degree, and Avhich they did by their verdict. Charges 3 and 4 were, therefore, properly refused.

The bill -of exceptions states that, “the defendant Avas not SAVorn as a Avitness and did not testify in his oavii behalf.” Section 5297 reads as folloAvs: “On the trial of all indictments, complaints, or other criminal proceedings, the person on trial shall, at his oavii request, but not otherwise, he a competent Avitness; and his failure to make such request shall not create any presumption against him, nor be the subject of comment by counsel.” The fifth Avritten charge to the jury requested, by the defendant, in substance states the laAv applicable to the case. It Avas a fact that the defendant failed to malee the request to testify in the case, and the charge could not, therefore, be condemned as being abstract. Nor should it be condemned as being argumentative, since it contained nothing more than the statement of an ad-mittecl fact and the law applicable under the statute. This charge should have been given, and for the error committed in its refusal, the judgment of the court below must be reversed.

Iteversed and remanded.