White v. State

MCCLELLAN, J.

The appellant has been sentenced to death for the murder of Dr. Ferrell. The doctor was the proprietor of a store at Praco, in Jefferson county. His dwelling was across the roadway from the store. Some time after midnight, just previous to the homicide, the doctor and a servant sleeping in his dwelling heard a noise about the store. Both went out on the porch; the doctor having his pistol. It was a clear, moonlight night. The doctor decided to go to the store to investigate the noise, and as he went down the steps of the porch fired the pistol once in the air. The servant testified that he crossed the roadway to the store, and, turning the corner of the store búilding, passed out of her theretofore plain view of him. The store fronted the road. Its front was near the ground level, but because of the slope of the earth under the building the rear thereof was considerably elevated, thus leaving a view from the porch under the building. The servant testified that almost immediately after the doctor passed out of her sight she heard gunshots, the flashes of which, as she saw them, came from the elevated space beneath the rear of the building. There was a barrel and a metal cask under this part of the building. Immediately following the shots the doctor called to the servant to come to him, that he was shot, but immediately directed her not to come, lest she be shot. There appeared to be tracks of a man or men about the barrel under the store, and what seemed to be a pistol hole in the metal cask. The doctor was mortally wounded, and sur *685 vived only a short time. Dogs sufficiently shown to be trained to trail human beings (Hodge’s Case, 98 Ala. 10 , 13 South. 385 , 39 Am. St. Rep. 17 ; Gallant’s Case, 167 Ala. 60 , 52 South. 739 ), were brought to the scene of the homicide, within a reasonable time, and therefrom took a trail leading to a dwelling in which defendant was found and arrested. Later he admitted having shot Dr. Ferrell, but asserted that his act was in self-defense; that when the doctor turned the corner of the building he immediately saw, and began to shoot at, the defendant, who claimed he was but a traveler through that way, entirely innocent of any unlawful purpose or action. .

(1) In addition to testimony reciting the call made by the doctor for his servant immediately after he was shot, the prosecution was allowed to show by the servant that at the same time he said: “They got me from behind the barrel.” These expressions of the mortally wounded man were so intimately related In time and occasion to the major fact as to fall within the range of res gestas. — Stevens v. State, 138 Ala. 71 , 35 South. 122 .

There was no error in any of the rulings touching the handling and action of the dogs in and about the trailing done by the dogs from the store to the place whereat defendant was arrested. A proper predicate, under the familiar rule, was laid for the admission of the confessions of defendant that he alone shot the doctor.

(2-4) The prosecution was allowed, over defendant’s objection, to have a witness qualified by experience to explain a “cut shell,” and the difference, in effect, between a cut shell and an uncut shell. Cut shells, along with the defendant’s gun, were found at the place of defendant’s arrest. A cut shell is the result of nearly severing that part of the shell containing the shot from that containing the powder; and the effect of shooting such a shell is to project the severed part of the shell as a unit, rather than the shot from the shell. The effect of a cut shell on the object hit therewith is to make a larger hole or wound than is the case where an ordinary shell is discharged, and the shot strikes at a sufficient distance to admit of their separated flight. The use of a cut shell is necessarily more murderous in its effect upon a person hit therewith; and in a case like this the fact that the defendant prepared and had cut shells was a circumstance to go to the jury, in connection with the other evidence, includ *686 ing that descriptive of the wound inflicted on the deceased. Furthermore, the fact that the defendant had equipped himself with this character of munition was likewise a proper matter for the jury’s consideration in connection with the jury’s right to find from the evidence that the assault upon the deceased was by one who was engaged or about to become engaged in depredating upon the property of the deceased, and this from a place behind a barrel under the store of deceased.

(5) There was no impropriety in the court’s allowing testimony tending to show that the defendant had taken a circuitous and unusual route at that time of night from one point in that section to his home; he having testified that he was an innocent traveler toward his dwelling place from another point, from-which he could have reached his dwelling place by a more convenient and direct route.

(6-8) There was no error in the instruction the court gave the jury in his supplemental charge. It was a correct statement of the law as we understand it, and in no manner invaded the jury’s province to consider the guilt or innocence of the defendant in the light of his theory that he shot the doctor only in self-defense, after the doctor had twice fired at him. It was not necessary, in the connection in which the jury invited further instruction from the court, to define the doctrine of a reasonable doubt. If the defendant desired that the jury be instructed with reference to the doctrine of reasonable doubt in that connection, it was his duty to invoke the court’s consideration of that matter in an appropriate way.

(9) Charge C refused to the defendant invaded the province of the jury, since it was entirely possible under the evidence to find the defendant guilty under the indictment, regardless of the purpose, lawful or otherwise, with which the defendant was at or about the store of the deceased. Furthermore, as we understand the defendant’s case, he presented the sole theory that the homicide was justified on the ground of self-defense.

(10) Charge 2 requested for the defendant was calculated to confuse and mislead; and was hence properly refused. — Gaff ord’s Case, 125 Ala. 1, 10 , 28 South. 406 , treating charge 1.

(11) Charge 3 requested for the defendant was correctly refused, for the reason that it predicates an acquittal without appropriate reference to his freedom from fault in bringing on *687 the difficulty and on his inability to observe his duty to retreat as defined in our law.

(12) Charge 6 requested for the defendant was due to be refused upon the ground that it pretermitted to hypothesize the negative of the possible fact that the defendant was not the aggressor, and was not engaged in an unlawful enterprise just before or at the time of the shoooting of deceased by him.

(18-16) Charge 7 was properly refused because it assumed that the deceased assaulted the defendant, because it pretermitted to negative in the hypothesis that the defendant was the assailant, and because it omitted to negative the possible fact that the defendant was unlawfully purposed and engaged just before and at the time of the tragedy. Furthermore, the defendant was either justified in taking the deceased’s life, on the one hand, or, on the other hand, was guilty of murder.

(17) Charge 8 requested for the defendant was condemned in Fowler’s Case, 155 Ala. 21 , 45 South. 913 (see charge A).

(18) The refusal of charge A requested for the defendant was justified by its tendency to mislead the jury. Aside from other features of it that may have possessed a tendency to confuse or to mislead, that feature treating of the conduct of the defendant at the time he asserts that Ferrell fired on him was calculated to improperly exclude from consideration the unlawful acts or conduct of the defendant just previous to the shooting.

No error appearing, the judgment is affirmed.

Affirmed.

All the Justices concur.