Opinion
8 Div. 479.
January 11, 1923. Rehearings Denied February 1, 1923, and May 10, 1923.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
Street Bradford, of Guntersville, for appellant.
The venire of the petit jury was not legally drawn, and motion to quash should have been sustained. Kuykendall v. State, 16 Ala. App. 197, 76 So. 487. That defendant had his pistol while staying at Hardin's house was incompetent, and should not have been admitted in evidence. McNaron v. State, 7 Ala. App. 170, 62 So. 302; Clarke v. State, 78 Ala. 474, 56 Am. Rep. 45. The statement by the sheriff that he had been making search for the defendant was incompetent. McMunn v. State, 113 Ala. 86, 21 So. 418. When one party offers a part of a conversation, so much of the conversation as is relevant to that offered may be received from the other party; but parts of the conversation, wholly disconnected with that offered, cannot be brought in. 40 Cyc. 2751; Ford v. State, 41 Tex. Cr. R. 1, 51 S.W. 935, 53 S.W. 869. The remark of the solicitor was objectionable, as a criticism of defendant's counsel for not having proved what would have been inadmissible. 38 Cyc. 1491; Shawnee v. Sparks, 26 Okl. 665, 110 P. 884, L.R.A. 1918D, 1; People v. Fielding, 158 N.Y. 542, 53 N.E. 497, 46 L. L.R.A. 661, 70 Am. St. Rep. 495; McAdory v. State, 62 Ala. 154.
Harwell G. Davis, Atty. Gen, and Lamar Field, Asst. Atty. Gen., for the State.
The motion to quash the venire was properly overruled. Lang v. State, 18 Ala. App. 88, 89 So. 164; Ex parte Lang, 206 Ala. 58, 89 So. 166. Counsel discuss other points, but without citing authorities.
Appellant was convicted of murder in the second degree, and his punishment fixed at imprisonment for 25 years.
Defendant moved to quash the venire. Aside from a consideration of the manner in which the question was presented, there is no merit in the proposition set forth in the motion as decided in the case of Lang v. State, 18 Ala. App. 88, 89 So. 164, reviewed by this court in Lang v. State, 206 Ala. 58, 89 So. 166.
Defendant also filed a plea in abatement upon which the state took issue. The court set the case for trial upon the issue thus presented, and also upon plea of not guilty, and defendant objected to being arraigned and required to plead to the indictment, before the issue upon the plea in abatement was disposed of. It is insisted this was irregular and reversible error, citing Allen v. State, 162 Ala. 74, 50 So. 279, 19 Ann. Cas. 867. We are of the opinion, however, that such irregularity cannot avail defendant on this appeal, as the record discloses that, upon issue being joined on the plea in abatement, the jury rendered a verdict in favor of the state pursuant to agreement of the defendant, and it thus appears the plea was confessedly without merit.
Witness Martin, for the defense, testified to the bad character of deceased for peace and quiet, and testified on cross-examination that he had had trouble with him. We see no reversible error in the action of the court in declining to allow defendant, on redirect examination, to go into the particulars of such difficulty and inquiring as to who was responsible therefor.
Defendant had shown, by his witnesses Alfred Hardin and wife, that he had his pistol at Hardin's house while working there, and had some negotiations with Hardin about trading it for a gun. While this was some two weeks before deceased was shot, yet, in view of the uncontradicted testimony of defendant's witnesses in regard to the matter introduced, it seems at the instance of defendant, no prejudicial error is shown in the action of the court overruling objection of defendant to question by the state as to whether or not he kept his pistol at Hardin's while there. The case of Clarke v. State, 78 Ala. 474, 56 Am. Rep. 45, is readily distinguishable. Charge 5, relating to this matter, was properly refused.
Deceased was killed on Monday, August 8, 1921, and the defendant introduced the sheriff of Marshall county, who testified of the defendant's surrender on the Saturday following, and also that he examined his person and found some bruises thereon. Upon cross-examination of this witness, the state was permitted, over defendant's objection, to ask the witness whether or not he had made search in the community around there for the defendant, to which the witness replied in the affirmative, stating that he had looked for him.
The evidence thus elicited on cross-examination was proper as tending to show flight. The case of McMunn v. State, 113 Ala. 86, 21 So. 418, cited by counsel for appellant, does not militate against this conclusion.
One Albert Foster was an eyewitness to the shooting, and testified as to the details thereof. The defendant introduced one Rice, who testified as to hearing a conversation by Foster as he passed the house of Haas the day he was killed, contradictory of Foster's testimony as to what was said between the parties at the time of the difficulty. The state, in rebuttal, offered the testimony of one Oliver Smith, who, the evidence tends to show, was present at the time of the conversation by Foster, testified to by the witness Rice. Smith's testimony was contradictory as to that of Rice as to what was said by Foster, and he was permitted to state all that was said by Foster on that occasion. The defendant having offered proof as to part of this conversation, we think there was no error in permitting the state to prove all that was said by Foster at that time — all of which bore relation to the question of this homicide. 40 Cyc. 2753.
The statement of the solicitor in his argument, to which objection was overruled, has been examined, and we find nothing therein calling for reversal of the cause. Nor was there error in the refusal of charge 3.
Charges 2 and 11, refused defendant, related to the question of "lying in wait," which only has bearing upon murder in the first degree. As defendant's conviction of murder in the second degree operated as an acquittal of first degree murder, a consideration of these charges is unnecessary, as in no event could their refusal be held as of prejudicial effect upon defendant.
There was evidence by at least one witness of the general bad character of the defendant. Charge 6 was therefore properly refused, and was also argumentative.
Refused charge 7 was argumentative as well as invasive of the province of the jury, and in part abstract.
The principle sought to be stated in refused charge 8 was not only covered by the general oral charge of the court but also by given charge 26. So also the principle as to self-defense, sought to be presented in refused charge 13, was embraced within given charge 30 as well as the court's oral charge.
Upon a careful consideration of the questions presented upon this appeal, we are persuaded that no reversible error appears, and the judgment of conviction will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.