Talley v. State

SOMERVILLE, J.

The defendant was convicted of murder in the first degree, and sentenced to life imprisonment.

Twelve of the jurymen whose names were on the special venire were engaged in the trial of another cause when the jury was selected for the trial of defendant. Defendant objected to being required to strike without these 12 names being placed on the list. This objection was properly overruled. — See Trammell v. State, 1 Ala. App. 83 , 55 South. 431 ; Patterson v. State, 171 Ala. 2 , 54 South. 696 .

Defendant testified in his own behalf, and on cross-examination the solicitor was allowed to ask him, “Why did you go to Lovett? and, “How came you to get out of the way?” The witness’ motive in doing these things was relevant to the issue, and could be properly elicited by a direct question on cross-examination. — Linnehan v. State, 120 Ala. 293 , 25 South. 6 . Moreover, his answers were exculpatory and distinctly beneficial to himself. There was no error in overruling the objections to the questions or the motions to exclude the answers:

*105 i Before the jury retired, defendant requested that the jury be allowed to take out with them the written show: ing admitted as the testimony of his witness, Helen Davis, and excepted to the court’s refusal to allow it. This action was within the discretion of the trial court. —Smith v. State, 142 Ala. 14, 27 , 89 South. 329 ; Koosa v. Warten, 158 Ala. 496 , 48 South. 544 .

The court refused to give six of the charges requested in writing by the defendant. The first charge was bad for two reasons: (1) Although the wound inflicted by defendant did not cause the death of the deceased, defendant might still have been convicted of a felonious assault; and (2) if the wound inflicted on deceased by defendant materially promoted or hastened his death, defendant might be guilty of murder, although the wound just previously inflicted on deceased by another assailant also could be said to have caused his death.— Jones v. State, Infra, 57 South. 31 ; Huckabee’s Case, 159 Ala. 45 , 48 South. 796 . In this second aspect, the charge was highly misleading, if not actually erroneous. The second charge was properly refused for the second reason above stated.

The paper showing introduced in evidence as the testimony of Helen Davis contained statements of fact which, if true, completely established the innocence of defendant. The bill of exceptions recites that “the court allowed defendant to make a showing for said witness, which said showing is admitted by the state.” The third refused charge is founded upon the idea that the state admitted the truth of the showing, and was conclusively bound thereby. We cannot so interpret this recital of the bill; for, admitting the showing was one thing, and admitting th.e truth of the showing was quite-another.

*106 It is sufficiently obvious that the state merely admitted the showing as the evidence of the absent witness.

The fourth charge is faulty in not qualifying the word “convinced”; for the jury need not be absolutely convinced of defendant’s guilt, hut only convinced beyond a reasonable doubt. It also presented the misleading tendency condemned in the first and second charges.

The fifth charge was patently bad. The fact that defendant saw Clanny Bird engaged in a fight with deceased, and that he intervened and killed deceased, in order to save her from a deadly attack is no justification, unless she was herself free from fault in provoking the difficulty, and could not have retreated without increasing her peril. The charge fails to hypothesize these necessary elements of self-defense. Nor would the fact that defendant struck the fatal blow “on the impulse of the moment” withdraw from the act the implication of malice aforethought.

The sixth charge is erroneous; for though the jury should not capriciously disregard the testimony of any witness, they might nevertheless, in their sound discretion, disregard it for reasons other than that it has been impeached. This charge therefore invades the province of the jury in this respect, and was at least misleading in its use of the word “impeached.”

From all the evidence, the jury might have inferred and found that, although the blow struck by defendant did not’cause, and was not one of the causes of, Lawler’s death, defendant was nevertheless present, aiding, abetting, or encouraging the unlawful act of Clanny Bird. In assuming the contrary- to this, charges 1 and 4 were erroneous and properly refused therefor. — Jor dan v. State, 82 Ala. 1 , 2 South. 460 .

*107 We have examined all the questions presented by the record, and find no error prejudicial to the appellant.

Affirmed.

All the -Justices concur, except Dowdell, C. J., not sitting.