Bardin v. State

• Decision Date: 16 February 1905
• Citation: 38 So. 833,143 Ala. 74
• Parties: BARDIN ET AL. v. STATE.
• Court: Alabama Supreme Court

38 So. 833

143 Ala. 74

BARDIN ET AL. v. STATE.

Supreme Court of Alabama

February 16, 1905

Appeal from Circuit Court, Covington County; Wm. H. Samford, Judge.

Rufus Bardin and others were jointly indicted for the murder of one Tom Wyrostick, and from a judgment convicting defendants Rufus Bardin and Letcher Bardin of murder in the second degree they appeal. Reversed.

The defendant requested the court in writing to give the following charges, which were refused, and defendant excepted: "(1) A reasonable doubt arising out of any part of the evidence will justify the acquittal of the defendant." "(4) If, from the evidence, you are reasonably satisfied that at the time the fatal shots were fired the defendant Rufus Bardin was in imminent danger of suffering death or grievous bodily harm at the hands of the deceased, and under these circumstances he fired the fatal shots, you should acquit the defendant Rufus Bardin, unless you are convinced beyond a reasonable doubt from the evidence in the case that the said Rufus Bardin was at fault in bringing on the difficulty." "(8) Unless you are convinced beyond a reasonable doubt from the evidence in the case that the defendant Letcher Bardin fired one or more of the shots that were fired on the night of the killing, you should acquit him." "(13) If, from the evidence there is a probability of the innocence of defendants, you should acquit them. (14) Unless each one of you is convinced of the guilt of defendants from the evidence in the case, you should acquit them."

Henry Opp, C. E. Hamilton, and Powell, Albritton & Albritton, for appellants.

Massey Wilson, Atty. Gen., for the State.

TYSON J.

It appears from the testimony of the witness Whitlock that at the time of the killing he was living at River Falls. It also appears from the cross-examination of this witness by defendants that he was told by one of them, in a conversation had between them at River Falls, that it would be best for witness to leave that place, and that immediately after this conversation the witness did leave, going to Greenville. It was not made to appear from the cross-examination when this conversation was had--how long after the killing. It was entirely competent for the state to bring out this fact on redirect examination, which was done by the question "How long did you stay at River Falls after the killing?" For the same reason there is no merit in the objection to the other question of like tenor and import.

No sufficient predicate was laid for the introduction of the testimony of witness Devane taken on the preliminary examination before the committing magistrate. All that is shown was that he could not be found in the county of his residence after diligent search by the sheriff and his deputy who had a capias and a subp na for him. In Mitchell v State, 114 Ala. 1, 22 So. 71, this point arose upon substantially the same predicate as was attempted to be laid here. It was there said: "The witness was a known resident of the county, and the mere fact that after diligent search she was not found at her usual place of residence, or in the county, shows no more than a present disappearance consistent with the hypothesis that it was merely temporary, and that she was elsewhere in the state, subject to the powers and jurisdiction of the court." See, also, Harris v. State, 73 Ala. 495. The interrogation in the argument of the solicitor, "Why don't you bring witnesses from the grand old county of Butler to impeach him?" referring to John Stewart, a witness examined in behalf of the state, whom the testimony showed...