Harrell v. State

McCLELLAN, J.

The defendant is condemned to die for the murder of a woman, Nancy Toodles. The evidence discloses the prosecution’s theory to have been that defendant, inspired by jealousy, shot deceased without semblance of legal excuse or justification. The *16 defense was that in a scuffle or tussle over a revolver the weapon was discharged, resulting in the woman’s death. During the examination in chief of Hatcher, a witness offered by defendant, this question was propounded: “Describe her condition at that time. Did she show any evidence of having imbibed of any spirituous liquors?” The state objecting to the question, the court elicited from witness that the occasion to which the question was related was about half an hour before the woman was shot. The court sustained the objection. The status of fact and circumstance before the jury at the time the quoted question was propounded was only that we have indicated as the prosecution’s theory. There was no evidence of self-defense in the case at that time, if indeed, there was at later stages. The court was not required to anticipate that there would be such evidence or such defense. In the then state of the evidence, intoxication vel non of the deceased was wholly immaterial, and the court properly rejected the question.— Askew v. State, 94 Ala. 4, 8, 10 , South. 657, 33 Am. St. Rep. 83 ; Gregory v. State, 140 Ala. 16, 27, 37 , South. 259; Nichols v. Winfrey, 90 Mo. 403, 408 , 2 S. W. 305 . The legitimate office of such testimony is to reflect light upon the “defensive” act of the accused. If his act be not legally defensive, but aggressive, it is obvious that the condition of the assailed, as regards intoxication, is without the issue of guilt vel non; for the killing of one steeped in intoxicants cannot be justified or palliated on account thereof.

The exceptions taken to the allowance of questions propounded to defendant on the cross-examination of him are without merit. The evidence tended to show his flight soon after the tragedy. These questions on the cross sought and elicited explanation of the course of his flight, and the circumstances attending it, even *17 down to the occasion of his arrest in another state. There was no error in allowing the questions propound ed. —Thomas v. State, 100 Ala. 53 , 14 South. 621 ; Franklin v. State, 145 Ala. 669 , 39 South. 979 .

The first instruction refused to defendant was faulty in the particular that it invaded the province of tne jury. —Fonville’s Case, 91 Ala. 39 , 8 South. 688 ; Smith's Case, 88 Ala. 23 , 7 South. 103 .

The other instruction was palpably bad. It predicated an acquittal of murder upon feelings of affection entertained, at the time of the shooting, by defendant for deceased. Murder, in the extreme degree, may be committed notwithstanding the existence of such affection, and that it does exist may, upon occasion, inspire the murderous act as an expression of jealousy grounded in an extreme affection.

We discover no error in the record, and hence the judgment must be affirmed.

Affirmed.

Dowdell, C„ J., and Simpson and Saybe, JJ., concur.