Opinion
6 Div. 411.
August 19, 1924.
Rehearing Denied October 7, 1924.
Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.
Freeman Drummond was convicted of manslaughter in the first degree, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Ex parte Drummond, 212 Ala. 410, 102 So. 726.
These charges were refused to the defendant:
"(A) The court charges the jury that, before they can convict this defendant, they must be satisfied clearly, fully, and conclusively, and to a moral certainty, and unless they are so satisfied they must find the defendant not guilty."
"(1) The requirements that juries must believe defendant guilty from the evidence beyond a reasonable doubt is not a fiction of law, but is intended as a substantial shield against conviction until that degree of proof is made which leads the jury to believe that defendant cannot reasonably be innocent under the evidence."
"(3) The court charges the jury that there is no law in this state which makes it your duty to consider defendant's evidence in the light of the fact that he is defendant, but you have a right to weigh it as you have other testimony in the case."
"(9) The court charges the jury that good character of the defendant may be sufficient to raise a reasonable doubt of his guilt, and to authorize an acquittal."
Gray Powell, of Jasper, for appellant.
It was the right of defendant to cross-examine the witness Garner in order to elicit testimony showing his interest or bias. Knox v. State, 18 Ala. App. 358, 92 So. 206; Knowles v. Blue, 209 Ala. 27, 95 So. 481; Johnson v. State, 199 Ala. 255, 74 So. 366; Banks v. State (Ala. Sup.) 39 So. 921; 40 Cyc. 2489; Sorrell v. Scheuer, 209 Ala. 268, 96 So. 217. It was permissible to inquire of a witness if he had talked with others about the case. Boulden v. State, 102 Ala. 78, 15 So. 343; Russell v. State, 19 Ala. App. 425, 97 So. 845; Haisten v. State, 5 Ala. App. 56, 59 So. 361.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
The appellant was indicted for murder in the first degree and convicted of manslaughter in the first degree, and his punishment fixed at seven years in the penitentiary. The evidence tended to show that Dr. Freeman Drummond, the appellant, and Dr. Sam Drummond, the deceased, had been for several years partners in the practice of dentistry, but that the partnership had in April, 1920, before the day of the killing in November, 1920, been dissolved, and that Dr. Freeman Drummond, the uncle of the deceased, and who had rented the offices, had notified the deceased to vacate. During the existence of the partnership the two dentists, the appellant and the deceased, had occupied the same offices, using the same tools or instruments necessary in their practice, the same furniture and office fixtures, having only one dental chair, one reception room and one work office. After the dissolution of the partnership the appellant and deceased continued to occupy the same offices, and had several quarrels about the offices and their business. The evidence for the state tended to show that on the morning of the killing the deceased was sweeping out the offices when the appellant came in and told the deceased he had to get out of the office, the deceased replying that he would get out when he got ready, and appellant told deceased he had better get out pretty quick. The deceased drew the broom with which he was sweeping, and told appellant he would knock his head off, and deceased then turned and went back into the operating room, set the broom down by the door facing, and picked up a chair and set it out of the way. Defendant went in the door of the operating room, and a pistol fired. The deceased was found lying on the floor with a pistol wound in his left breast, from which wound he died in a few minutes. The appellant admitted shooting the deceased. There was evidence of threats by the defendant against the deceased. The evidence for the appellant tended to show that the deceased was his nephew; that he had helped him to get his dental education and took him in partnership with him; that they practiced dentistry together for several years, and disputes arose between them about their business matters; that the partnership was dissolved in April, 1920; that appellant rented the offices occupied by them, and had repeatedly attempted after the dissolution of the partnership to get the deceased to vacate the offices; that on the morning of the fatal difficulty the defendant went to his office and found the deceased there sweeping out with a broom appellant went in, and deceased swept dust on appellant's feet and said he had received the notice to vacate, but he was not going to get out; that deceased drew the broom on him and said he would knock his head off, and picked up a chair and said he was going to kill appellant, and while deceased had the chair drawn in a position to strike appellant shot him. There was evidence of threats of the deceased against the defendant. There was evidence of good character of the defendant.
The court did not err in sustaining objection by the state to the question propounded by the defendant on cross-examination of state's witness Garner, as follows: "Who did you tell, if anybody, the first one?" The question, if asked for the purpose of showing bias or interest, was too general. If for the purpose of impeachment, it was but fair to the witness to state the time and place and give the name of the person to whom the alleged statement was made. The questions propounded by the defendant to state's witness Garner, covered by assignments of error 1 to 12, inclusive, attempt to elicit testimony which might tend to show bias or interest of one Phillips, who was not a witness. Regardless of the interest of Phillips, the testimony sought in no way tends to show bias or interest of the witness. Neither would his refusal to talk about the case tend to show bias or interest. A witness may not be impeached, nor may bias or interest be shown by proof that an outsider, who is neither a witness nor a party to the cause, talked to the witness about the case, or that the witness refused to talk about the case. That some outsider had offered some inducement to the witness does not tend to discredit the witness. If such were the rule, a man of spotless character would be at the mercy of the unscrupulous, without power to defend himself from unjust aspersions. Cheatham v. State, 67 Miss. 335, 7 So. 204, 19 Am. St. Rep. 310.
It was competent to show by the state witness Hamilton that the defendant said in his presence (speaking of the deceased), "If I can't get rid of him in one way, I will another." Evidence of threats by the defendant against the deceased is admissible as tending to show malice or motive of the accused. Price v. State, 107 Ala. 161, 18 So. 130; Marler v. State, 67 Ala. 55, 42 Am.Rep. 95; Overstreet v. State, 46 Ala. 30.
It was competent for the state on cross-examination of defendant's witness J.W. Morris, to ask, for the purpose of impeachment, if the witness had not made certain statements about the facts of the case to certain parties at a fixed time and place. Holley v. State, 105 Ala. 100, 17 So. 102; Henson v. State, 120 Ala. 316, 25 So. 23. The question by the state's solicitor to the defendant's witness Morris, "You have been in frequent conversations on this case for defendant?" was answered in the negative, and the defendant cannot complain of injury. Crawford v. State, 3 Ala. App. 1, 57 So. 393; Green v. State, 151 Ala. 14, 44 So. 194, 125 Am. St. Rep. 17, 15 Ann. Cas. 81.
Evidence of the fact of prior difficulties between the defendant and the deceased was admissible, but evidence of the details of such difficulties is not admissible. The trial court did not err in refusing to allow the defendant to show the details of the difficulties connected with the partnership and its dissolution. It was immaterial to any issue in the case whether or not the defendant had paid, or contributed to, the education of the deceased. Objections to questions elicting such information were properly sustained.
Charge A was faulty, as not predicated upon the evidence (Edwards Case, 205 Ala. 160, 87 So. 179), and as exacting too high a degree of proof.
Charge 1 was argumentative and misleading, and was properly refused.
Charge 3 was inaptly drawn, and misleading.
Charge 9 was faulty; it pretermits a consideration of all the evidence. Evidence of good character alone is not sufficient to raise a reasonable doubt of the guilt of the defendant and authorize an acquittal. Evidence of good character in connection with the other evidence in the case may generate a reasonable doubt of the guilt of the defendant. The very comprehensive and fair oral charge of the trial judge and the written charges given at the request of the defendant covered fairly and substantially every proposition of law arising in the case, and the record shows that the defendant was accorded a fair and impartial trial.
We find no prejudicial error, and the judgment of the circuit court is affirmed.
Affirmed.