Opinion
Rehearing denied June 7, 1927.
March 29, 1927.
Appeal from Circuit Court, Crenshaw County; A. E. Gamble, Judge.
Mink Graham was convicted of manslaughter in the first degree, and he appeals. Affirmed.
Frank B. Bricken, of Luverne, for appellant.
The question as to deceased's character as a dangerous man called for relevant and legal testimony, and it was not necessary that the question embrace the words, "violent, bloodthirsty, and turbulent." Lambert v. State, 205 Ala. 548, 88 So. 847. The question to witness Dr. Boyles as to how long a man would live, a bullet going into the body at the point indicated, did not call for the opinion of the witness but for a statement of fact. Objection to this question should have been sustained. 1 Mayfield's Dig. 340; Page v. State, 61 Ala. 16; Rash v. State, 61 Ala. 80.
Harwell G. Davis, Atty. Gen., and Chas. H. Brown, Asst. Atty. Gen., for the State.
The evidence was in sharp conflict, and the affirmative charge was properly denied to defendant. Lakey v. State, 20 Ala. App. 78, 101 So. 537. No motion to exclude the answer of the witness Boyles was made, and defendant can take nothing by his objection. Haney v. State, 20 Ala. App. 236, 101 So. 533. Defendant had the benefit of testimony as to the character of deceased when he put his question in proper form, and he cannot complain of the action of the court in sustaining objection to previous question calling for the same matter. Russell v. State, 17 Ala. App. 436, 87 So. 221. Where no exception is made to the oral charge same will not be reviewed. Morgan v. State, 20 Ala. App. 467, 103 So. 76.
The evidence was in conflict upon all the material issues involved in the trial of this case, and therefore the general charge as requested was properly refused.
The court did not err in sustaining the state's objection to the question of defendant propounded to the witness Bradley as follows:
"You think you know the deceased's general character in the community in which he lived, from what you know yourself and what people said about him as to being a dangerous man?"
The question does not go far enough to embrace a general character for being "dangerous, violent, bloodthirsty." However, by the next question asked this same witness, the defendant had the benefit of the testimony, and hence cannot complain. Kirby v. State, 151 Ala. 66, 44 So. 38; Russell v. State, 17 Ala. App. 436, 87 So. 221.
A state's witness indicated the location of the wound on deceased's body. No objection was interposed to this. Then Dr. Bayles was asked: "How long would a man live, a bullet going about where he said it went in?" There was objection to the question, but no motion to exclude the answer, which, to say the least, was not prejudicial to defendant. Haney v. State, 20 Ala. App. 236, 101 So. 533.
The court properly excluded that part of the testimony of defendant's witness King, that defendant's witness Nichols had told witness certain things. This was hearsay.
There appears no exception to any part of the court's oral charge, and hence we do not respond to that part of appellant's brief insisting upon error in the court's oral charge. Morgan v. State, 20 Ala. App. 467, 103 So. 76.
There is no error in the record, and the judgment is affirmed.
Affirmed.