Opinion
4 Div. 833.
November 21, 1944.
Appeal from Circuit Court, Coffee County; C.C. Brannen, Judge.
Leamon, alias Lemon, Hornsby was convicted of manslaughter in the first degree, and he appeals.
Affirmed.
State's witness Fuller testified on cross-examination that he had heard that defendant and Robert Stevens, the deceased, had had some difficulty previous to that in which deceased was killed, and that he had seen defendant on Sunday before the killing on Tuesday, when defendant came to witness' house. He was then asked: "Did he tell you anything about Robert Stevens?" The State objected, the Court sustained the objection and counsel for defendant then stated to the Court:
"We propose to prove by the witness that the defendant came to the witness on Sunday afternoon immediately preceding the Tuesday on which the difficulty occurred, and told the witness that the deceased had threatened to kill him and requested of the witness that he be allowed to get out a peace warrant against the deceased and that the witness told the defendant that such procedure would not be necessary, that he was sure that the little difficulty could be settled."
To this the Court responded: "You may have your exception."
The following charge was refused to defendant:
"3. The Court charges the Jury that if they have a reasonable doubt on the question of whether or not the defendant acted in self-defense they should find the defendant not guilty."
J.M. Rowe, of Montgomery, for appellant.
When the State proved by its witness Fuller that there was a little difficulty between defendant and deceased and that witness had knowledge thereof, the defendant should have been permitted to show by cross-examination of the witness when and how he learned of the difficulty and the whole conversation witness had with defendant relative thereto. Holland v. State, 162 Ala. 5, 5 So. 215.
Wm. N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty. Gen., for the State.
Declarations of accused made prior to homicide, relating to difficulty between himself and deceased, are inadmissible unless forming a part of the res gestae. Billingslea v. State, 68 Ala. 486; Berney v. State, 69 Ala. 220; Harkness v. State, 129 Ala. 71, 30 So. 73; Ferguson v. State, 134 Ala. 63, 32 So. 760, 92 Am.St.Rep. 17; Turner v. State, 160 Ala. 40, 49 So. 828; Hawkins v. State, 239 Ala. 532, 195 So. 765; Id., 29 Ala. App. 221, 195 So. 762. The evidence sought was self-serving and inadmissible. Donald v. State, 12 Ala. App. 61, 67 So. 624. Refused charge 3 is confusing, abstract, and was properly refused. Ledbetter v. State, Ala., 39 So. 618.
Appellant was indicted for the offense of murder in the first degree; regularly put on trial, and convicted of the offense of manslaughter in the first degree. His punishment was fixed at imprisonment in the penitentiary for the term of ten years.
He admitted that he shot with a pistol, and killed, one Robert Stevens; but he claimed that he did so in self-defense, as that term was minutely defined to the jury in the learned trial court's scholarly, explicit, complete, and correct, oral charge.
The testimony was ample to support the verdict returned by the jury; and we see no good purpose to be served by narrating it.
Really, after a careful scrutiny of the record, we observe nothing, a discussion of which seems to demand "space in the books."
A reading of the brief of appellant's able counsel representing him here discloses that he — painstaking attorney that he is — could not contend with confidence to the contrary. We commend him.
It was of course proper to sustain the State's objection to the question calling for "self-serving acts done and statements made by an accused (appellant), which are (were) no part of the res gestæ (of the killing)." Long v. State, 24 Ala. App. 571, 139 So. 113; Hawkins v. State, 239 Ala. 532, 195 So. 765. The case cited by appellant's distinguished counsel holds nothing to the contrary.
As for appellant's written, requested and refused charge 3 we merely remark, as did our Supreme Court of a charge (written charge 5) not distinguishable in principle, in the case of Ledbetter v. State, 39 So. 618 (not reported in the State reports); "Charge 5 (3, here) is so clearly faulty as to need no comment."
And we feel we ought to say that appellant's counsel recognized as much, by himself, making no comment — as we believe he would have done, had he thought there was merit in said charge.
The case was one peculiarly for the jury; and, obviously and patently, no erroneous ruling was made by the court throughout the trial.
The judgment is due to be affirmed. And it is so ordered.
Affirmed.