Opinion
6 Div. 412.
January 12, 1922.
Appeal from Circuit Court, Jefferson County; Wm. E. Fort, Judge.
Robert G. Tate, of Birmingham, for appellant.
Brief of counsel did not reach the Reporter.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
The appellant has been convicted of murder in the second degree, and his punishment fixed at 50 years' imprisonment in the penitentiary. The man killed by appellant was Henry Taylor, another negro. The shooting took place on the sidewalk either immediately in front of Jones' tailor shop or pool room, or was near thereto. The state's theory was that the appellant followed Taylor to Taylor's place of employment at Jones' place soon after appellant and Taylor had had elsewhere some dispute or difficulty, that he awaited Taylor's coming out of the shop, the evidence tending to show a lying in wait within the statute (Code, § 7084), and that upon Taylor's leaving the shop and reaching the sidewalk appellant attacked Taylor and shot him. The appellant sought to justify his act in shooting Taylor on the ground of self-defense, testifying that without any previous or then present cause or excuse Taylor attacked him, shot at him several times, twice wounding him, whereupon appellant drew his pistol and killed Taylor during the encounter. It is manifest from the record that the guilt of the defendant was for the jury to decide from the conflicting evidence.
Over defendant's objection the state was permitted to show by Jones that Taylor, about 15 minutes before the shooting, came into the shop greatly excited, and applied to him for money with which to buy a pistol because defendant had threatened to kill him, Jones testifying, in that connection, that defendant was "peeping" in the shop door, within hearing of Taylor's statements, at the time they were made. The court held these statements admissible, it being made to appear that defendant was within hearing of the statements, "peeping" in the door. There was no error in overruling defendant's objections to these matters.
The coat that was said to have been worn by Taylor when he was shot was received in evidence without error. Kuykendall v. Edmondson, 200 Ala. 650, 77 So. 24.
There was no error in permitting the prosecution to elicit from the defendant, on cross-examination, the admission that he had pleaded guilty to petit larceny, an offense involving moral turpitude.
It appears from the bill of exceptions that the witness McGlaun was permitted to recite Taylor's request, when apparently angry, made of another, in McGlaun's presence about five minutes before the shooting, for a pistol, or the inquiry whether that person had a pistol, so, notwithstanding the court had previously sustained the state's objection to questions not then appearing, as did subsequently, to be designed to bring out such admissible matter, there was no prejudicial error in rulings made during the examination of McGlaun.
It was not error to overrule the defendant's motion for new trial, particular grounds referring to newly discovered evidence. Two of these were not supported in the affidavits, and one of them pertained to cumulative matter only.
The judgment is free from error; it is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.