Opinion
1 Div. 852.
December 17, 1929.
Appeal from Circuit Court, Monroe County; T. J. Bedsole, Judge.
Gaines English was convicted of manslaughter in the first degree, and he appeals. Affirmed.
The following charges were refused to defendant:
"5. I charge you, gentlemen of the jury, that if there is a reasonable probability of defendant's innocence, then this is a just foundation for a reasonable doubt and authorizes on acquittal."
"7. I charge you, gentlemen of the jury, that if the evidence of the State consists in the statements of a witness of the truth of which the jury have a reasonable doubt they cannot convict on such evidence, although they may not believe the testimony of defendant's witnesses."
"21. The court charges the jury that if they believe from the evidence that deceased was in the habit of carrying a pistol, and that defendant knew of such habit prior to the difficulty; that the circumstances were such at the time as to justify a reasonable man to honestly believe that his life was in danger, or that he was in danger of serious bodily harm, and that at the time defendant so believed, and that defendant was free from fault in bringing on the difficulty, and that he could not have retreated without increasing his peril, then the defendant had a right to act upon such appearances at the time, and if defendant so acted under such circumstances and killed the deceased, you should find the defendant not guilty."
J. D. Ratcliffe, of Monroeville, for appellant.
The declaration testified to by witness Washington was not inculpatory in nature, in so far as deceased was concerned, was not a part of the res gestæ, and should not have been allowed. Johns Undertaking Co. v. Hess-Strickland Co., 213 Ala. 78, 104 So. 250; Russell v. State, 20 Ala. App. 68, 101 So. 71. Charge 5 is a good charge, and its refusal was reversible error. Fleming v. State, 150 Ala. 19, 43 So. 219; Bardin v. State, 143 Ala. 74, 38 So. 833; Mims v. State, 141 Ala. 93, 37 So. 354; Bones v. State, 117 Ala. 138, 23 So. 138; Whitaker v. State, 106 Ala. 30, 17 So. 456. Charge 7 is a correct statement of law. Segars v. State, 86 Ala. 59, 5 So. 558; Mills v. State, 1 Ala. App. 76, 55 So. 331; Bones v. State, supra; Griffin v. State, 150 Ala. 53, 43 So. 197. Charge 21 is a correct statement of law. It is not abstract. Davenport v. State, 85 Ala. 336, 5 So. 152; Dooley v. State, 89 Ala. 90, 8 So. 528; Bones v. State, supra; Chaney v. State, 178 Ala. 44, 59 So. 604.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
Indictment for murder in the second degree. The defendant, Gaines English, was convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary for a term of eight years, from which conviction and sentence he prosecutes this appeal. The defendant was charged with unlawfully and with malice aforethought killing one Elijah Brown, alias Lige Brown, by stabbing him with a knife, but without premeditation or deliberation. The defendant admitted cutting the deceased and causing his death, but pleaded self-defense. The defendant contends that he was absolutely free from fault in bringing on the difficulty, that he was on his way home from a negro supper or frolic of some kind, and that the deceased followed him, overtook him, and struck and otherwise attacked him with a pistol, and that he turned and cut the deceased in defense of his own life; the defendant at the time being in imminent danger of losing his life, or of receiving serious bodily harm at the hands of the deceased.
Will Washington, a witness for the state, was permitted to testify, over objection of defendant, that, after the fatal cutting, Charlie Harris said, in the presence and hearing of defendant, "Let him come on, that Gaines English had done cut Elijah to death;" and in reply to this the defendant said "he hadn't cut Lige nothing to what he was going to cut Charlie Harris." This was in the nature of an inculpatory admission on the part of defendant, admissible and relevant, not as part of the res gestæ, but as an admission. The error in admitting this statement without predicate was immediately cured by proof that it was voluntary.
Under the facts in this case charge 7 as requested by defendant was misleading and properly refused. For authorities see Baxley v. State, 18 Ala. App. 277, 90 So. 434.
Refused charge 5 is held to be bad in Cooke v. State, 18 Ala. App. 416, 93 So. 86; Edwards v. State, 205 Ala. 160, 87 So. 179.
Defendant's refused charge 21 is abstract. There is no evidence in this record that defendant knew that the deceased was in the habit of carrying a pistol. The only evidence on this point is the statement of defendant relative to the pistol at the time of the difficulty. There is no evidence that defendant had any such information before that time.
We find no prejudicial error in the record, and the judgment is affirmed.
Affirmed.