Abercrombie v. State

• Decision Date: 11 May 1948
• Docket Number: 6 Div. 438.
• Parties: ABERCROMBIE v. STATE.
• Court: Alabama Court of Appeals

36 So.2d 111

33 Ala.App. 581

ABERCROMBIE v. STATE.

6 Div. 438.

Alabama Court of Appeals

May 11, 1948

Rehearing Denied May 25, 1948.

Geo. Rogers, of Birmingham, for appellant.

A. A. Carmichael, Atty. Gen., and L. E. Barton Asst. Atty. Gen., for the State.

The following charges were refused to defendant.

'4. The Court charges the jury that the burden is upon the State and it is the duty of the state to show, beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis every circumstance necessary to show that the defendant is guilty; and, unless the state has done that in this case, it is your duty, gentlemen of the jury, to render a verdict of not guilty.'

'10. The court charges the jury that if defendant shot deceased under a bona fide belief that he or his wife was in impending danger of limb, and he had, under all the circumstances, reasonable cause to believe that he was in imminent danger at the time the shooting was done, it would be immaterial whether there was such danger or not.'

'12. The Court charges the jury that if, after looking at all the evidence in this case, your minds are left in such a state of doubt or uncertainty that you cannot say, beyond a reasonable doubt, whether the defendant acted upon a well-founded and reasonable belief that it was necessary to take the life of deceased to save himself from great bodily harm or death, or that he shot before such impending necessity arose, then this is such a doubt as will entitle this defendant to an acquittal, and you should so find.'

'15. The court charges the jury that if defendant shot deceased under a bona fide belief that his wife was in impending danger of limb, and he had under all the circumstances, reasonable cause to believe that his wife was in imminent danger at the time the shooting was done, it would be immaterial whether there was such danger or not.

'A. The court charges the jury that if they believe from the evidence that the deceased was of a violent and blood-thirsty character, they are to take such evidence into consideration in determining the defendant's guilt, provided they find him guilty.

'B. The court charges the jury that if any individual juror is not convinced of the defendant's guilt beyond a reasonable doubt and to a moral certainty, you cannot convict.

'C. The Court charges the jury that if, on a consideration of all the evidence in this case, you find the evidence so nearly balanced that the mere weight of it is on the side of the state, and not so heavy and strong as to satisfy you to a moral certainty that it is true, you cannot find defendant guilty.

'D. The court charges the jury that if the evidence of the state consists in the statement of a witness, of the truth of which the jury has a reasonable doubt, they cannot convict on such evidence, although they may not believe the testimony of defendant's witness.

'E. The Court charges the jury that you are not authorized to find a verdict of guilty on the testimony of a single witness, if you have a reasonable doubt of the truth of his statement.'

CARR, Judge.

This appeal follows a conviction of manslaughter in the second degree. The indictment charges murder in the first degree.

Admittedly the appellant killed Charlie Slaughter by shooting him once with a twelve gauge shotgun.

It appears without conflict that the deceased was a brother of defendant's wife. Just prior to the shooting, Slaughter had struck his sister a rather severe blow. This occurred out of the presence of the appellant, but he was only a short distance away. This fact was promptly made known to him, and he forthwith secured the shotgun and came out into the road or street. His wife appeared in view, and he observed that she was bleeding about the face. Without much delay, the deceased walked up the road in the direction of the two just indicated. The accused called to him three or four times to stop, but the latter did not heed the request or command, and the appellant fired.

The officers arrived before the dead body was removed and found a small stick, about the size of a pocket knife, in the hand of the deceased.

The prime factual issues are apparent.

We will discuss only those questions which appear to us to be meritorious.

The State, of course, was priviledged to show the flight of the accused, and in support of this proof it was competent for the officer to testify that he made unsuccessful search for the appellant for several days after the homicide. Koch v. State, 115 Ala. 99, 22 So.2d 471; Sweatt v. State, 156 Ala. 85, 47 So. 194; Starnes v. State, 30 Ala.App. 156, 2 So.2d 333.

It was permissible for the State to inquire whether or not the defendant was drinking on the occasion of the homicide. Jones v. State, 22 Ala.App. 141, 113 So. 478; Vintson v. State, 23 Ala.App. 51, 121 So. 698.

Appellant's wife was among the witnesses interrogated on this point. She replied that her husband had not had anything to drink that afternoon. The State then laid an impeachment predicate to her by asking if she did not tell the officer that her husband 'had a beer.' To which she replied that she did not remember. On redirect examination the appellant's attorney attempted to have the witness relate the content of other parts of the same conversation. This was denied.

If this was the limit of our review we would encounter a difficult task of decision, due to the conflict in the authorities. We will not express our view on the matter. To do so would only be responding to dictum. We cite some cases to illustrate what we have observed. Haley v. State, 63 Ala. 83; Henderson v. State, 70 Ala. 29; Martin v. State, 119 Ala. 1, 25 So. 255; Cathcart v. Webb & Morgan, 144 Ala. 559, 42 So. 25; Richardson v. State, 237 Ala. 11, 186 So. 580; Louisville & N. R. Co. v. Malone, 109 Ala. 509, 20 So. 33; Palmer et al. v. State, 168 Ala. 124, 53 So. 283.

In the case at bar the solicitor did not only interrogate the appellant's wife on the matter we have indicated, but asked her also if she told the officer that the deceased was drinking. To this she replied in the affirmative. The State, therefore, brought into the evidence a part of the conversation.

The entire questioning relating to the conversation extended further than a simple denial by the witness that she made the statement. We would not be privileged to apply the rule pronounced in the case of Martin v. State, supra, and others which conform to a similar holding.

In the light of this situation we are forced to the familiar doctrine which provides that if one of the parties brings into the evidence a part of a conversation the other party should not be deprived of the right of proving the whole or any other portions thereof. Key v. State, 240 Ala. 1, 197 So. 363; Brewer v. State, 209 Ala. 411, 96 So. 198; Winchester v. State, 20 Ala.App. 243, 102 So. 535.

We cannot escape the conclusion that error must be here predicated.

Finally we come to consider the written charges which were refused to appellant.

Number 2 is a duplicate of given charge 7.

A conviction did not depend in any aspect on circumstantial evidence. Charge 4 was, therefore, properly refused. Brown v. State, Ala.App., 31 So.2d 670.

We had for review in Bankhead v. State, Ala.App., 32 So.2d 814, an instruction in exact counterpart to charge number 9 in the case at bar. The propriety of its refusal is there illustrated.

Refused charge number 10 was approved by the Supreme Court in the following cases: Kennedy v. State, 140 Ala. 1, 37 So. 90; Snyder v. State, 145 Ala. 33, 40 So. 978; Gaston v. State, 161 Ala. 37, 49 So. 876; Fantroy v. State, 166 Ala. 27, 51 So. 931; Gray v. State, 171 Ala. 37, 55 So. 124.

This court approved the charge in Trammell v. State, 1 Ala.App. 83, 55 So. 431, but disapproved it in Newman v. State, 25 Ala.App. 526, 149 So. 724. It is evident that the holding in the Newman case is out of line with the authorities. In this particular, it is expressly overruled.

It should be noted that the Supreme Court reviewed the instruction in Davis v. State, 188 Ala. 59, 66 So 67, and justified its refusal for the reason it was abstract as applied to the facts there. In the instant case the evidence did present a situation which made...