Opinion
8 Div. 98.
May 20, 1924.
Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.
Lonnie Sampson was convicted of an assault with a knife, and appeals. Affirmed.
Charge 2 refused to defendant is as follows:
"(2) Gentlemen of the jury, if you find from all the testimony in this case that the defendant was a tenant of Malone at the time of the difficulty, and he refused to allow the defendant the use of a mule to finish his crops, and defendant went to the home of Malone on a peaceable mission to try and induce Malone to let him have a mule for the purpose of finishing his crop, and, while there, Malone cursed and abused him and threatened to kill him or inflict upon him great bodily harm, and ran onto him with a gun, and the defendant cut Malone until Malone ceased his attack, then the defendant would not be guilty under the indictment in this cause, and you should acquit him."
Orr Killcrease, of Albertville, for appellant.
Defendant's motion to retax costs of witnesses summoned and not examined should have been granted. Forcheimer Co. v. Kaver, 79 Ala. 285; Porter v. Williams, 22 Ala. 525; Briley v. Hodges, 3 Port. 335. It was improper for the witness, not an expert, to testify the cut reached the cavity. Bennett v. State, 52 Ala. 370; 22 Cyc. 485; Jones on Evi. (2d Ed.) 448. Evidence as to the injured party brooding over a prior difficulty with defendant was admissible. McCormack v. State, 102 Ala. 156, 15 So. 438; Armor v. State, 63 Ala. 173; Davis v. State, 126 Ala. 44, 28 So. 617; Gray v. State, 63 Ala. 66.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
In the absence of proof, the motion to retax was properly overruled. Barnard v. State, 71 Ala. 15. Evidence of the injured party's age was competent. Anderson v. State, 209 Ala. 36, 95 So. 171. A witness could not give in evidence his conclusion as to whether the injured party was brooding. Hill v. State, 18 Ala. App. 172, 90 So. 62. Charges not predicated upon the evidence are properly refused. Edwards v. State, 205 Ala. 160, 87 So. 179.
Motion was made in this case to retax certain costs incurred by the state in having summoned certain witnesses not examined. Courts cannot judicially know for what purposes witnesses are summoned, or that such witnesses were in excess of those allowed by statute. In a case of the character of the one on trial, the evidence sometimes takes a wide range, and the solicitor in preparing the case for trial is permitted to anticipate defenses within legitimate bounds. In the absence of evidence convincing the court that the witnesses, whose costs were sought to be retaxed, were unnecessary or in excess of the statutory limits, the motion to retax was properly overruled. Barnard v. State, 71 Ala. 15.
While the injured party was being examined as a witness, the solicitor asked this question: "Did the cut reach the cavity?" The objection to this was general, not stating any grounds. The question was not subject to a general objection. Moreover, the answer could not have been prejudicial, as the witness immediately described the wound, stating the facts, from which the jury could draw its own conclusion, without answering the question objected to.
The court properly permitted the injured party to testify as to his age. Anderson v State 209 Ala. 36, 95 So. 171.
The clothes worn by the injured party at the time of the injury are admissible as part of the res gestæ.
On cross-examination of the injured party, defendant's counsel asked several questions seeking to prove that just prior to the time the alleged attack was made, the witness was sitting in his house "brooding" over a difficulty had between witness and defendant the "evening before." The court sustained the state's objections to these questions, and defendant excepted. At that time there was no evidence of an overt act on the part of the witness, and no semblance of testimony as to self-defense on the part of defendant. Under the facts as they appeared, the action of defendant in assaulting witness was without any provocation. After the defendant has introduced evidence tending to show self-defense, or if counsel had informed the court as to what he expected the evidence later to develop, the testimony called for might have been relevant; but in the light of the testimony then developed, the mental attitude of the witness towards the defendant was in no way relevant. Andrews v. State, 134 Ala. 47, 32 So. 665; Kirby v. State, 151 Ala. 66, 44 So. 38; Moore v. State, 16 Ala. App. 503, 79 So. 201.
The fact that "Vennie fainted" when she saw that her father was cut, while irrelevant, is not of sufficient importance to justify a reversal of the case. In the trial of hotly contested cases, isolated and irrelevant remarks from witnesses sometimes "creep in." Taken alone, there might be technical error, but, taken with the entire statement of the witness, are without prejudicial injury.
The advice given defendant by Dowdy, a justice of the peace, prior to the defendant's going to the house where the difficulty arose, was hearsay and inadmissible. Charges 1, 5, 8, and 9, if for no other reason, are bad and properly refused for the reason they do not predicate the finding of the jury on the evidence. Edwards v. State, 205 Ala. 160, 87 So. 179. Besides, the court had fully covered very principle of law set out in these charges.
Charge 2 omits the elements of self-defense.
Charge 7 predicates the conclusion of the jury on a part of the testimony, and charges 6 and 4 are covered by the oral charge.
We find no error in the record, and the judgment is affirmed.
Affirmed.