Where no inference was deducible from the evidence that defendant acted in self-defense or that his act in stabbing the prosecuting witness was the result of sudden passion engendered by sufficient provocation and without malice, the trial court was not required to add to the charge to the jury that malice is presumed from the use of a deadly weapon the qualifying phrase "unless the circumstances of the killing disprove malice." Baker v. State, 33 Ala. App. 596, 36 So.2d 239; Baker v. State, 251 Ala. 65, 36 So.2d 241; Newsom v. State, 15 Ala. App. 43, 72 So. 579. FAULKNER, Justice.
The exclamation of Hattie Bumpers as she went out of the crowd and ran through the door was admissible. Durden v. State, 18 Ala. App. 498, 93 So. 342; Lancaster v. State, 21 Ala. App. 140, 106 So. 609; Cline v. State, 25 Ala. App. 433, 148 So. 172; Largin v. State, 20 Ala. App. 610, 104 So. 556; Newsome v. State, 15 Ala. App. 43, 72 So. 579. The declaration made in the cemetery, in the presence of the defendant and one of the conspirators, and to which defendant replied, was admissible. Cline v. State, supra.
Testimony of what was said and done immediately after the fatal shot was fired was admissible as part of the res gestæ. Moreover, a conspiracy having been prima facie established, by evidence aliunde, any acts or declarations of the coconspirators made in appellant's presence and with his assent were admissible against him. Collins v. State, 138 Ala. 57, 34 So. 993; Morris v. State, 146 Ala. 66, 41 So. 274; Johnson v. State, 87 Ala. 39, 6 So. 400; Brindley v. State, 193 Ala. 43, 69 So. 536, Ann. Cas. 1916E, 177; Pynes v. State, 207 Ala. 413, 92 So. 666; Burns v. State, 226 Ala. 117, 145 So. 436; Bachelor v. State, 216 Ala. 356, 113 So. 67; Cline v. State, 25 Ala. App. 433, 148 So. 172; Newsom v. State, 15 Ala. App. 43, 72 So. 579; Hardeman v. State, 14 Ala. App. 35, 70 So. 979; Durden v. State, 18 Ala. App. 498, 93 So. 342; Nelson v. State, 130 Ala. 83, 30 So. 728; Tate v. State, 23 Ala. App. 122, 122 So. 461; Robertson v. State, 23 Ala. App. 267, 125 So. 60. Evidence of the former difficulty, some thirty or forty minutes before the fatal difficulty, between deceased and a cousin of appellant, was admissible as part of the res gestæ. 16 C. J. 537; Collins v. State, supra; Hainsworth v. State, 136 Ala. 13, 34 So. 203; Carter v. State, 219 Ala. 670, 123 So. 50. It was also admissible on the theory of a conspiracy. 16 C. J. 656; Lockett v. State, 218 Ala. 40, 117 So. 457. If the details of the former difficulty were not admissible, it was proper to show that blows were struck and shots fired in order to show the gravity of the difficulty.
The predicate in connection with the attending circumstances tended to show that Craddock was in and about his master's business at the time of the fatal rencounter, and his declaration in respect thereto was within the res gestæ rule. Williams v. State, 147 Ala. 10, 41 So. 992; Newsom v. State, 15 Ala. App. 43, 72 So. 579; Scipio v. Pioneer Mining Mfg. Co., 166 Ala. 666, 52 So. 43; Shope v. Ala. Fuel Iron Co., 195 Ala. 312, 70 So. 279; Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495; Note 55 A.L.R. 1198. The rule in respect to a motion by the defendant to exclude all of the plaintiff's evidence is that the trial court will not be put in error for refusing the motion, nor will it be put in error for granting it if evidence does not make a prima facie case.
Continuity of purpose or conspiracy to commit a homicide need not be proven by positive testimony, but may be shown by the conduct of the parties and the circumstances surrounding the act. Newson v. State, 15 Ala. App. 43, 72 So. 579; Ex parte Newsom, 198 Ala. 692, 73 So. 1001; Earnest v. State, 21 Ala. App. 534, 109 So. 613; Cleveland v. State, 20 Ala. App. 426, 103 So. 707; Ex parte Cleveland, 212 Ala. 635, 103 So. 711; Brewer v. State, 15 Ala. App. 681, 74 So. 764; Bailey v. State, 11 Ala. App. 8, 65 So. 422. It was competent to show any chain of circumstances or facts continuous in their nature leading up to and effectuating the homicide. Collins v. State, 138 Ala. 57, 34 So. 993; Johnson v. State, 21 Ala. App. 565, 110 So. 55; Patterson v. State, 202 Ala. 65, 79 So. 459. If there is sufficient evidence to afford an inference adverse to defendant, a jury question is presented. Hargrove v. State, 147 Ala. 97, 41 So. 972, 119 Am. St. Rep. 60, 10 Ann. Cas. 1126. The court may state to the jury the general tendencies of the evidence or the theories of the defense and the prosecution.
The instruction in the oral charge that "implied malice is that which the jury have a right to infer from the facts and circumstances in each particular case, and that which the law implies from the use of a deadly weapon, and the shooting of one person by another with a deadly weapon is a malicious killing, unless the facts and circumstances surrounding the use of the weapon or other evidence rebuts or removes that presumption," as applicable to the evidence in this case, correctly states the law. Berry v. State, 209 Ala. 120, 95 So. 453; Newsom v. State, 15 Ala. App. 43, 72 So. 579; Davis v. State, 214 Ala. 273, 107 So. 737. The instruction given in the oral charge that, "if he shot at his wife, and he shot her in the back, gentlemen of the jury, if you are satisfied of this from the evidence beyond a reasonable doubt, it would be your duty to convict him," when considered in connection with what immediately followed — "If, on the other hand, he was shooting at Noah Adams and hit his wife and killed her, before he can be acquitted he must show that he was acting in self-defense in shooting at Noah Adams" — is subject to no other interpretation than that, if the defendant intentionally shot his wife and shot her in the back, he was guilty of some offense, leaving the question of the degree of his guilt for the jury's determination.
" Just as error cannot be predicated on the limitation of arguments where the record fails to show that counsel consumed the entire time allotted, Newsom v. State, 15 Ala. App. 43, 72 So. 579, cert. denied, 198 Ala. 692, 73 So. 1001 (1916), on the showing made here we cannot say that the constitutional rights of the accused were impinged. In King v. State, Ala.Cr.App., 347 So.2d 1005, cert. denied, Ala., 347 So.2d 1010 (1977), we held that the trial court did not err in refusing defense counsel's request to argue the legal effect of certain requested charges before submitting them to the trial judge.
The trial court will not be put in error as its charge was correct. Stidwell v. State, 107 Ala. 16, 19 So. 322 (1894) (infers); Heningburg v. State, 153 Ala. 13, 45 So. 246 (1907) (presumes); McDowell v. State, 238 Ala. 482, 191 So. 894 (1939) (presumes); Newsom v. State, 15 Ala. App. 43, 72 So. 579 (1916); Barber v. State, 22 Ala. App. 322, 116 So. 322, cert. denied, 217 Ala. 330, 116 So. 323 (1928). The contention of the appellant is perhaps best answered by the case of Humber v. State, 19 Ala. App. 451, 99 So. 68 (1923) wherein the following charge was refused by the court as being misleading and not correctly stating the law:
Further, as was set out in Kiel v. State, 236 Ala. 585, 184 So. 210, "Everything said and done by any of the parties relating to the crime and tending to elucidate the action of the parties, and springing out of the transaction while the parties were still laboring under the excitement and strain of the circumstances, and at a time so near it as to preclude the idea of deliberation and fabrication, is a part of the res gestae." Durden v. State, 18 Ala. App. 498, 93 So. 342; Lancaster v. State, 21 Ala. App. 140, 106 So. 609; Cline v. State, 25 Ala. App. 433, 148 So. 172; Largin v. State, 20 Ala. App. 610, 104 So. 556; Newsom v. State, 15 Ala. App. 43, 72 So. 579. III
The common enterprise essential to a conspiracy need not exist for any definite length of time prior to the execution of the unlawful act, Eaton v. State, 8 Ala. App. 136, 63 So. 41; Bailey v. State, 11 Ala. App. 8, 65 So. 422, and a conspiratorial agreement may arise on the spur of the moment. Newsom v. State, 15 Ala. App. 43, 72 So. 579. Appellant's argument in this aspect is without merit.