Opinion
7 Div. 336.
August 2, 1927.
Appeal from Circuit Court, Clay County; E. S. Lyman, Judge.
Olin Bailey was convicted of manslaughter in the first degree, and he appeals. Reversed and remanded.
The statement of facts contained in brief of appellant's counsel is as follows:
"The defendant in this case was indicted for murder in the second degree for the killing of one Charlie Hill, and convicted for manslaughter in the first degree and sentenced to the penitentiary for a term of seven years.
"The defendant admits the killing, but insists that he is not guilty, for and on account of an assault which the deceased committed on his wife by striking her with the blade of a double-bit axe on her left breast and the side of her face, which the defendant was endeavoring to stop, and that the deceased ran at the defendant with an axe, and, after overtaking him and after knocking him down with either the axe or a rock, the deceased received the cuts or stabs which resulted in his death.
"The testimony in this case is without dispute that the deceased and the defendant lived on the same farm of George Patterson, working land on halves, and that the defendant had a mule which he was working and which is spoken of in the record as his mule, and that the deceased had a mule which is also spoken of in the record as the deceased's mule, and that the landlord was furnishing them a wagon to do their hauling with, which wagon and harness was kept at the house of the deceased, and that the deceased would use the defendant's mule when he desired to do hauling, and that the defendant would use the deceased's mule when he had hauling to do, and that on the day of the difficulty the deceased had brought a bale of cotton to town and returned to the defendant's home with the wagon and the defendant's mule, and that the defendant's wife was then in the home of the deceased, and a short time after the defendant reached the home of the deceased the deceased came, and they, with Marcus Smith, went off and got some whisky and came back, and that all three of them were preparing to go to Ashland for the purpose of the deceased carrying the whisky and selling or disposing of it, and that a dispute arose over which mule they would drive, whether the mule of the defendant or the mule of the deceased; that this dispute continued until their wives came out of the house and each went to their husbands for the purpose of stopping the fuss.
"It is the insistence of the defendant: That, after the deceased's wife and the defendant's wife had come out into the yard where the difficulty was taking place, the deceased went to the wood pile and picked up a double-bit axe and stated that he would kill the damn son of a bitch. By these remarks, he was referring to the defendant. That the wife of the defendant told the defendant to stay there and that she would go to the deceased and stop the difficulty. That on her reaching the deceased he struck her across the side of the face a glancing lick and the blade of the axe struck her on her left breast, cutting it open, and leaving a large gash which, it is undisputed, caused the left breast to gap open considerably, and that at that time she had a young baby of approximately two months old.
"The testimony is practically without dispute that at the time the defendant's wife was struck with the axe, which was about 10 o'clock on Saturday night, the defendant ran to his wife, and, after finding that her breast was cut open, asked the deceased why he had cut his wife, and that immediately the deceased came toward the defendant with the axe drawn, and ran him some distance and until he was knocked down by a lick on the ankle either by the axe or a rock or some other hard substance, and that at this time the deceased caught the defendant and they clinched, and that the defendant reached around the deceased and stabbed him several times in the back, which finally resulted in his death.
"It is without dispute in this case that the deceased at the time of the assault was heavily under the influence of liquor, and that his general character for peace and quietude was bad, and that his general character in the community was bad."
J. J. Cockrell, of Lineville, and Pruet Glass, of Ashland, for appellant.
Defendant was entitled to show the entire conversation between himself and witness Stewart. Webb v. State, 100 Ala. 47, 14 So. 865; Burns v. State, 49 Ala. 370; Martin v. State, 2 Ala. App. 183, 56 So. 64. Charges 4 and 5 stated a correct proposition of law, and their refusal was reversible error. Horn v. State, ante, p. 66, 111 So. 452; Townsend v. State, 18 Ala. App. 242, 90 So. 58; Forney v. State, 98 Ala. 19, 13 So. 540; Davidson v. State, 167 Ala. 68, 52 So. 751, 140 Am. St. Rep. 17; Black v. State, 1 Ala. App. 170, 55 So. 948; Russell v. State, 201 Ala. 574, 78 So. 916; Hurd v. State, 94 Ala. 100, 10 So. 528; Turner v. State, 124 Ala. 59, 27 So. 272; Hunt v. State, 135 Ala. 1, 33 So. 329.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The indictment in this case charged murder in the second degree. The trial resulted in the conviction of defendant of manslaughter in the first degree; the jury fixed the punishment at seven years' imprisonment in the penitentiary. From the judgment of conviction pronounced and entered in accordance with the verdict of the jury, this appeal was taken.
The killing complained of was admitted by the accused. His version of the entire transaction is fully stated by his counsel in brief, as shown in the statement of the case.
The first exceptions noted relate to the rulings of the court on recross-examination of state witness Dr. Gay, wherein the defendant undertook to show that Charlie Hill, deceased, did not have proper food, after having been wounded. Also the question:
"I will ask you if it is not necessary for the recovery of the deceased for him to have had a diet, and that all of which he lacked?"
The court properly declined to allow this line of inquiry, for the law is: Where death is caused by a dangerous wound, the person inflicting it is responsible for the consequences, though the deceased might have recovered with the exercise of more prudence and with a different diet and better nursing. In this connection the court charged the jury as follows, and this portion of the oral charge has the approval of this court, to wit:
"Now, did the defendant kill the deceased, Charlie Hill? There was some testimony tending to show that perhaps the deceased man was neglected after he was injured, and that might have a tendency to show that on account of that he died, but it is for you to say whether it did or not, but the law is if those wounds that he received at the hands of the defendant, if he did receive any, if they were such as were calculated to produce death, no matter how the treatment might have been after that, that would have been the contributing cause of his death, and the fact that he was not treated properly would be no justification, and the defendant could not claim that as causing the death; it might have had something to do with it, but if the wounds were reasonably calculated to produce death and he died, although something else may have contributed to it, the defendant would still be held to have killed him if he struck the blow."
Witness Ivey Lowe testified:
"I knew Charlie Hill during his lifetime. I went to Charlie Hill's home on Saturday morning before he died that night. He told me that he was going to die; that he realized that death was pending; and that he was conscious of the fact that he was going to die."
This was a sufficient predicate for the admission of the dying declarations, and the objections to its introduction and exceptions reserved to the court's rulings in allowing witness to testify as to statements concerning the transaction by deceased are not well taken. Other exceptions reserved by defendant on the admission of dying declarations are without merit.
A proper predicate was laid for the introduction of defendant's statement in the nature of a confession to Sheriff John Stewart. The statement given in evidence clearly appears to have been voluntary. On cross-examination defendant undertook to prove other statements made to the sheriff by defendant, but at a different time and place. No predicate was proven for these alleged statements; therefore the court properly sustained the objection by the state to the questions seeking to adduce same. It affirmatively appears from the record that different conversations were involved and that the rule which allows the defendant to prove the remainder of a statement where the state has brought out a part thereof does not apply.
A further discussion of points involved is not deemed necessary, except the refusal of certain special written charges to defendant. Refused charges 4, 5, and 6 are of the same import; they should have been given. The appellate courts of this state have many times held these charges to be good and that their refusal is error. In effect these charges are as follows:
"The court charges the jury that if, upon consideration of all the evidence, they have a reasonable doubt of defendant's guilt, arising out of any part of the testimony, they must find the defendant not guilty."
Charges of this character assert a correct legal proposition, and are apt in practically all criminal trials. We do not see how such charges could be considered abstract in any criminal case. The charges do not single out any part of the evidence and request a verdict upon that part. They hypothesize a consideration of all the evidence, and a failure to produce conviction of guilt. If the jury entertain a reasonable doubt of the defendant's guilt, after considering all the evidence, it is their duty to acquit, though the doubt arises from a part only of the evidence.
In Hurd v. State, 94 Ala. 100, 10 So. 528, Mr. Chief Justice Stone, for the court, said:
"It is certainly the duty of the jury, in pronouncing on issues submitted to them, to consider and weigh all the testimony in the case. This does not mean that all, or any part of it, shall be believed. The law exacts no such rule as that. It must be considered, and given such weight as the manner of giving it in, its intrinsic nature, and the other testimony in the cause entitle it to. This much, and nothing more. This the jury must and will do, as the only way of performing their highest, sworn duty of rendering a true verdict according to the evidence."
See, also, the following cases which hold the refusal of said charges to be error: Hurd v. State, 94 Ala. 100, 10 So. 528; Forney v. State, 98 Ala. 21, 13 So. 540; Prince v. State, 100 Ala. 146, 14 So. 409, 46 Am. St. Rep. 28; Miller v. State, 107 Ala. 58, 19 So. 37; Riddle v. Webb, 110 Ala. 604, 18 So. 323; Henson v. State, 112 Ala. 46, 21 So. 79; Walker v. State, 117 Ala. 55, 23 So. 149; Liner v. State, 124 Ala. 1, 27 So. 438; Bardin v. State, 143 Ala. 77, 38 So. 833; Griffin v. State, 150 Ala. 49, 43 So. 197; Welch v. State, 156 Ala. 118, 46 So. 856; Davidson v. State, 167 Ala. 69, 52 So. 751, 140 Am. St. Rep. 17; Campbell v. State, 182 Ala. 33, 62 So. 57; Roberson v. State, 183 Ala. 55, 62 So. 837; Black v. State, 1 Ala. App. 173, 55 So. 948; Campbell v. State, 13 Ala. App. 77, 69 So. 322; Townsend v. State, 18 Ala. App. 242, 90 So. 58; Veasey v. State, 20 Ala. App. 478, 103 So. 67.
For the errors indicated, the judgment of conviction from which this appeal was taken is reversed, and the cause remanded.
Reversed and remanded.