Opinion
4 Div. 68.
May 17, 1923. Rehearing Denied June 21, 1923.
Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.
W. O. Mulkey, of Geneva, for appellant.
In the absence of evidence of self-defense, evidence of the relative size and physical condition of the parties is immaterial. Robinson v. State, 155 Ala. 72, 45 So. 916; Stevens v. State, 84 Neb. 759, 122 N.W. 58, 19 Ann. Cas. 121; State v. Cushing, 17 Wn. 544, 50 P. 512. Counsel argue other questions, but cite no additional authorities.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The fact that the list of jurors served on defendant contained the name of David M. Mison, who was not drawn, and that David M. Mixon, whose name did not appear on the list, was drawn and summoned, did not constitute ground for the quashal of the venire. Harris v. State, 203 Ala. 200, 82 So. 450; Reed v. State, 18 Ala. App. 371, 92 So. 513; Acts 1909, p. 317; Acts 1919, p. 1042. The state may offer evidence of the physical condition of the deceased. 21 Cyc. 911; Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am. St. Rep. 17; Harris v. State, 123 Ala. 69, 26 So. 515.
The fact that the venire contained the name of "David M. Mison" and that "David M. Mixon" was summoned, and that it also contained the names of two persons who had participated in a former trial of the case, afforded no ground for quashing the same, and the trial court did not err in overruling the defendant's motion to quash said venire. Harris v. State, 203 Ala. 200, 82 So. 450; Reed v. State, 18 Ala. App. 371, 92 So. 513; Acts 1909, p. 317, § 29; Acts 1919, p. 1042.
Dr. Crook had testified as to the nature and character of the wound, had been interrogated as to whether death was the direct result of the wound or whether resulting from an intervening cause, blood poison or meningitis, resulting from the wound, and the general physical condition of the deceased at the time of the blow was, of course, a factor to be considered in arriving at the real direct cause of death.
As a general rule, the physical condition or relative sizes of the parties is not admissible at the instance of the defendant in the absence of evidence tending to show self-defense. Robinson v. State, 155 Ala. 72, 45 So. 916, and cases there cited. There may be instances, however, when such facts may be of the res gestæ or may have some bearing on the question of malice and would be admissible on the part of the state in making out its case. 21 Cyc. p. 911. It is not necessary, however, to apply the above-noted exception to the case at bar for the reason that if it be conceded that the physical condition of the deceased was irrelevant at the time it was introduced it was made material by the subsequent evidence on the part of the defendant attempting to show that the blow was struck under an impending necessity to save the life of his father, or to protect him from serious bodily harm, and the general infirm and physical condition of the deceased was a question for the jury in ascertaining the true nature of the difficulty, and whether or not the father of the defendant was in such imminent peril as to excuse the assault made upon the deceased with the axe or limb of a tree which resulted in his death. True, this fact was proven not only generally but with tedious and unnecessary detail, but it all had a bearing upon and tendency to establish a weak and almost helpless condition of the deceased at the time of the difficulty.
The trial court will not be put in error in declining to let counsel for the defendant ask the witness on cross-examination:
"Emmett, why is it that I always have to ask you about that knife business? You will never tell it until I ask you about it."
In the first place, it is bad in form; second, the witness had already been fully examined as to the knife.
Charge G, refused the defendant, was abstract. There was no effort on the part of the state to establish a conspiracy, nor did the evidence tend to do so.
We cannot say that the trial court erred in refusing the defendant's motion for a new trial. The state's evidence fully justified the verdict; but even if the blow was with a limb instead of with an axe, and even if the deceased had his knife out instead of its being in his pocket, it was open for the jury to find that the fatal blow was not essential to save the defendant's father and was maliciously inflicted.
While we have not discussed all the exceptions and objections disclosed by the record, the same have been carefully considered, and we fail to find reversible error, and the judgment of the circuit court is accordingly affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ, concur.