Opinion
7 Div. 33.
June 27, 1934. Rehearing Denied October 30, 1934.
Appeal from Circuit Court, Cherokee County; A. E. Hawkins, Judge.
Perry Webb was convicted of murder in the second degree, and he appeals.
Affirmed.
The following charge was refused to defendant: "d. If what the defendant said to the deceased man was only a simple statement not in itself sufficient to arouse resentment on the part of the deceased man, and if the deceased man without more, then struck defendant and made a murderous assault, then I charge you that defendant was not at fault in bringing on the fatal difficulty."
Hugh Reed, of Center, for appellant.
In the circumstances shown, defendant could not be guilty of murder, and should not have been convicted even of manslaughter. It was error to admit evidence as to statements made by defendant; there being no controversy as to who was the aggressor — deceased beating defendant — or as to defendant's motive, which was to save himself. Defendant was entitled to have the jury instructed that, to constitute a fault in bringing on the difficulty, the word or act, viewed in the circumstances surrounding defendant, must be offensive or wrongful. Walker v. State, 220 Ala. 544, 126 So. 848. The test as to discussions in deliberations of the jury is not that they did influence the jury to act without evidence, but whether they may have influenced the jury. Roan v. State, 225 Ala. 428, 143 So. 454. The motion to set aside the verdict should have been granted, in view of the undisputed facts. Roan v. State, supra; Bufford v. State, 25 Ala. App. 99, 141 So. 359.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The evidence presented a question for the jury. Evidence if previous quarrels and ill feeling is admissible to show malice or motive for the killing. Smith v. State, 197 Ala. 193, 72 So. 316; Smith v. State, 8 Ala. App. 187, 62 So. 575; Clark v. State, 18 Ala. App. 209, 91 So. 328; Id., 207 Ala. 710, 91 So. 921. Previous threats and expressions of ill will by accused are of proper inquiry. Goocher v. State, 227 Ala. 337, 149 So. 830; Daugherty v. State, 21 Ala. App. 591, 139 So. 439. Testimony of jurors is inadmissible to impeach their own verdict. Cavin v. State, 25 Ala. App. 43. 140 So. 626. Charge "d" invades the province of the jury, and is not based on a consideration of all the evidence. The elements of self-defense are covered by the oral charge and given charges.
Appellant (defendant) was convicted of the offense of murder in the second degree. His punishment was fixed at imprisonment in the penitentiary for the term of ten years.
The testimony offered on behalf of the state tended to establish the offense charged, i.e., the one, of which appellant was convicted. It tended to show that the defendant approached the deceased, who was working at his job, and provoked the difficulty; that in said difficulty deceased was hitting defendant with a stick when defendant shot deceased several times and killed him. The said testimony further tended to show that after the deceased was shot he retreated and the defendant continued to shoot him in the back.
The defendant's testimony, including that offered on his behalf, tended to make out a case of self-defense, that he was free from fault in bringing on the difficulty, that he was not the aggressor, and that it was necessary for him to shoot the deceased to protect himself from death or great bodily harm.
A jury question was thus presented; the defendant's requested affirmative charges were properly refused; and the motion for a new trial on the ground the verdict was not sustained by the evidence was properly overruled.
There were numerous objections made by the defendant to the introduction of testimony by the state which tended to show previous quarrels or ill feeling between the parties and previous threats or expressions of ill will by the defendant. All of such testimony was clearly admissible. Evidence of previous quarrels and ill feeling is admissible to show malice, or motive for the killing. Smith v. State, 197 Ala. 193, 72 So. 316; Smith v. State. 8 Ala. App. 187, 62 So. 575; Clark v. State, 18 Ala. App. 209, 91 So. 328.
Likewise, previous threats and expressions of ill will by the defendant are proper subjects of testimony. Goocher v. State. 227 Ala. 337, 149 So. 830; Daugherty v. State, 24 Ala. App. 591, 139 So. 439.
The defendant could not have been prejudiced by being required to answer the question as to what he did with the pistol immediately after the shooting; his answer being that "I carried it to the house," meaning his home, a short distance away.
Appellant's requested charge d was properly refused as invasive of the province of the jury. Moreover, it is not based on a consideration of all of the evidence — to say nothing of the fact that all of the elements of self-defense are fully treated in the court's oral charge, together with requested charges given.
The testimony of jurors as to what occurred between them in the jury room is not admissible to impeach their own verdict. Norris v. State, 15 Ala. App. 567, 74 So. 394.
We find nowhere any prejudicially erroneous action or ruling, and the judgment of conviction is affirmed.
Affirmed.