Opinion
6 Div. 438.
May 11, 1948. Rehearing Denied May 25, 1948.
Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler, Judge.
Dudley Abercrombie was convicted of manslaughter in the second degree, and he appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in Abercrombie v. State, 250 Ala. p. 701, 36 So.2d 115.
The following charges were refused to defendant.
"4. The Court charges the jury that the burden is upon the State, and it is the duty of the state to show, beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis every circumstance necessary to show that the defendant is guilty; and, unless the state has done that in this case, it is your duty, gentlemen of the jury, to render a verdict of not guilty."
"10. The court charges the jury that if defendant shot deceased under a bona fide belief that he or his wife was in impending danger of limb, and he had, under all the circumstances, reasonable cause to believe that he was in imminent danger at the time the shooting was done, it would be immaterial whether there was such danger or not."
"12. The Court charges the jury that if, after looking at all the evidence in this case, your minds are left in such a state of doubt or uncertainty that you cannot say, beyond a reasonable doubt, whether the defendant acted upon a well-founded and reasonable belief that it was necessary to take the life of deceased to save himself from great bodily harm or death, or that he shot before such impending necessity arose, then this is such a doubt as will entitle this defendant to an acquittal, and you should so find."
"15. The court charges the jury that if defendant shot deceased under a bona fide belief that his wife was in impending danger of limb, and he had under all the circumstances, reasonable cause to believe that his wife was in imminent danger at the time the shooting was done, it would be immaterial whether there was such danger or not.
"A. The court charges the jury that if they believe from the evidence that the deceased was of a violent and blood-thirsty character, they are to take such evidence into consideration in determining the defendant's guilt, provided they find him guilty.
"B. The court charges the jury that if any individual juror is not convinced of the defendant's guilt beyond a reasonable doubt and to a moral certainty, you cannot convict.
"C. The Court charges the jury that if, on a consideration of all the evidence in this case, you find the evidence so nearly balanced that the mere weight of it is on the side of the state, and not so heavy and strong as to satisfy you to a moral certainty that it is true, you cannot find defendant guilty.
"D. The court charges the jury that if the evidence of the state consists in the statement of a witness, of the truth of which the jury has a reasonable doubt, they cannot convict on such evidence, although they may not believe the testimony of defendant's witness.
"E. The Court charges the jury that you are not authorized to find a verdict of guilty on the testimony of a single witness, if you have a reasonable doubt of the truth of his statement."
Geo. Rogers, of Birmingham, for appellant.
In homicide case, where trial court has permitted a witness on cross-examination to be questioned as to certain questions to her and answers thereto on a previous occasion, it is the right of defendant on redirect examination to bring out all that was said on the occasion; and refusal to permit this constitutes harmful error. Graham v. State, 233 Ala. 387, 171 So. 895; Wesson v. State, 238 Ala. 399, 191 So. 249; Richardson v. State, 237 Ala. 11, 186 So. 580; Edwards v. State, 22 Ala. App. 34, 111 So. 765; Jones v. State, 20 Ala. App. 247, 101 So. 331; Kimbrell v. State, 18 Ala. App. 641, 94 So. 241; Ex parte State, 208 Ala. 700, 94 So. 922; Ray v. State, 147 Ala. 5, 41 So. 519; Drake v. State, 110 Ala. 9, 20 So. 450; Gibson v. State, 91 Ala. 64, 9 So. 171; Gary v. State, 18 Ala. App. 367, 92 So. 533; Shumate v. State, 19 Ala. App. 340, 97 So. 772; Ex parte Shumate, 210 Ala. 252, 97 So. 777.
A. A. Carmichael, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., for the State.
While, as a general rule, if one party on cross examination brings out part of a conversation the other party may inquire fully into and bring out the whole of it on redirect examination, if there was error in denying defendant such right in this case it was without injury. The conversation or statement in question involved two matters. As to the phase of drinking, appellant's questions were allowed; as to the other phase of the conversation, questions as to which were not allowed, the substance thereof was brought out otherwise. Sup.Ct. Rule 45, Code 1940, Tit. 7, p. 1022.
This appeal follows a conviction of manslaughter in the second degree. The indictment charges murder in the first degree.
Admittedly, the appellant killed Charlie Slaughter by shooting him once with a twelve gauge shotgun.
It appears without conflict that the deceased was a brother of defendant's wife. Just prior to the shooting, Slaughter had struck his sister a rather severe blow. This occurred out of the presence of the appellant, but he was only a short distance away. This fact was promptly made known to him, and he forthwith secured the shotgun and came out into the road or street. His wife appeared in view, and he observed that she was bleeding about the face. Without much delay, the deceased walked up the road in the direction of the two just indicated. The accused called to him three or four times to stop, but the latter did not heed the request or command, and the appellant fired.
The officers arrived before the dead body was removed and found a small stick, about the size of a pocket knife, in the hand of the deceased.
The prime factual issues are apparent.
We will discuss only those questions which appear to us to be meritorious.
The State, of course, was privileged to show the flight of the accused, and in support of this proof it was competent for the officer to testify that he made unsuccessful search for the appellant for several days after the homicide. Koch v. State, 115 Ala. 99, 22 So.2d 471; Sweatt v. State, 156 Ala. 85, 47 So. 194; Starnes v. State, 30 Ala. App. 156, 2 So.2d 333.
It was permissible for the State to inquire whether or not the defendant was drinking on the occasion of the homicide. Jones v. State, 22 Ala. App. 141, 113 So. 478; Vintson v. State, 23 Ala. App. 51, 121 So. 698.
Appellant's wife was among the witnesses interrogated on this point. She replied that her husband had not had anything to drink that afternoon. The State then laid an impeachment predicate to her by asking if she did not tell the officer that her husband "had a beer." To which she replied that she did not remember. On redirect examination the appellant's attorney attempted to have the witness relate the content of other parts of the same conversation. This was denied.
If this was the limit of our review we would encounter a difficult task of decision, due to the conflict in the authorities. We will not express our view on the matter. To do so would only be responding to dictum. We cite some cases to illustrate what we have observed. Haley v. State, 63 Ala. 83; Henderson v. State, 70 Ala. 29; Martin v. State, 119 Ala. 1, 25 So. 255; Cathcart v. Webb Morgan, 144 Ala. 559, 42 So. 25; Richardson v. State, 237 Ala. 11, 186 So. 580; Louisville N. R. Co. v. Malone, 109 Ala. 509, 20 So. 33; Palmer et al. v. State, 168 Ala. 124, 53 So. 283.
In the case at bar the solicitor did not only interrogate the appellant's wife on the matter we have indicated, but asked her also if she told the officer that the deceased was drinking. To this she replied in the affirmative. The State, therefore, brought into the evidence a part of the conversation.
The entire questioning relating to the conversation extended further than a simple denial by the witness that she made the statement. We would not be privileged to apply the rule pronounced in the case of Martin v. State, supra, and others which conform to a similar holding.
In the light of this situation we are forced to the familiar doctrine which provides that if one of the parties brings into the evidence a part of a conversation the other party should not be deprived of the right of proving the whole or any other portions thereof. Key v. State, 240 Ala. 1, 197 So. 363; Brewer v. State, 209 Ala. 411, 96 So. 198; Winchester v. State, 20 Ala. App. 243, 102 So. 535.
We cannot escape the conclusion that error must be here predicated.
Finally we come to consider the written charges which were refused to appellant.
Number 2 is a duplicate of given charge 7.
A conviction did not depend in any aspect on circumstantial evidence. Charge 4 was, therefore, properly refused. Brown v. State, ante, p. 97, 31 So.2d 670.
We had for review in Bankhead v. State, Ala.App., 32 So.2d 814, an instruction in exact counterpart to charge number 9 in the case at bar. The propriety of its refusal is there illustrated.
Ante, p. 269.
Refused charge number 10 was approved by the Supreme Court in the following cases: Kennedy v. State, 140 Ala. 1, 37 So. 90; Snyder v. State, 145 Ala. 33, 40 So. 978; Gaston v. State, 161 Ala. 37, 49 So. 876; Fantroy v. State, 166 Ala. 27, 51 So. 931; Gray v. State, 171 Ala. 37, 55 So. 124.
This court approved the charge in Trammell v. State, 1 Ala. App. 83, 55 So. 431, but disapproved it in Newman v. State, 25 Ala. App. 526, 149 So. 724. It is evident that the holding in the Newman case is out of line with the authorities. In this particular, it is expressly overruled.
It should be noted that the Supreme Court reviewed the instruction in Davis v. State, 188 Ala. 59, 66 So. 67, and justified its refusal for the reason it was abstract as applied to the facts there. In the instant case the evidence did present a situation which made applicable the right of the accused to act upon the reasonable appearance of danger to the life or limb, and this as to himself and his wife.
It follows that charges numbered 10 and 15 should have been given.
There can be found in our recent cases of Brown v. State, Ala.App., 31 So.2d 670, and Favors v. State, 32 Ala. App. 139, 22 So.2d 914, a full discussion of the propriety of the refusal of charge 12 under circumstances where the question of freedom from fault is in factual dispute.
Ante, p. 97.
Charge 19 presented an inapplicable rule in view of the verdict of the jury.
Refused instruction A is incorrectly worded. It is not identical to those approved in Smith v. State, 88 Ala. 73, 7 So. 52, and Jacobs v. State, 29 Ala. App. 388, 197 So. 67. The fault may lie in the inadvertence of the draftsman, but written instructions must be given or refused in the terms in which they are tendered. Title 7, Sec. 273, Code 1940.
Charge B was held to be good in some of the early cases, for example Hale v. State, 122 Ala. 85, 26 So. 236; Fletcher v. State, 132 Ala. 10, 31 So. 561; Leonard v. State, 150 Ala. 89, 43 So. 214; Phillips v. State, 156 Ala. 140, 47 So. 245.
In a more recent case of Burkett v. State, 215 Ala. 453, 111 So. 34, a charge in meaning and effect the same was denounced.
This court has condemned the instruction in many cases. Collins v. State, 14 Ala. App. 54, 70 So. 995; Higdon v. State, 22 Ala. App. 28, 111 So. 757; White v. State, 22 Ala. App. 324, 115 So. 418; Osborn v. State, 30 Ala. App. 386, 6 So.2d 461; Milner v. State, 24 Ala. App. 350, 135 So. 599.
The charge is clearly bad because it is not predicated on the evidence in the case. Edwards v. State, 205 Ala. 160, 87 So. 179.
Refused instruction C is confusing and misleading. Bringhurst v. State, 31 Ala. App. 608, 20 So.2d 885.
A conviction of the accused did not depend upon the testimony of any one witness; therefore charges D and E are abstract and are predicated on a false premise. Gregory v. State, 140 Ala. 16, 37 So. 259; Baxley v. State, 18 Ala. App. 277, 90 So. 434.
The charge was approved in Segars v. State, 86 Ala. 59, 5 So. 558, but it there appears that only one witness testified in behalf of the prosecution.
For errors indicated, it is ordered that the judgment of the court below be reversed and the cause remanded.
Reversed and remanded.