Barlew v. State

• Decision Date: 09 January 1912
• Parties: BARLEW v. STATE.
• Court: Alabama Court of Appeals

57 So. 601

5 Ala.App. 290

BARLEW v. STATE.

Court of Appeals of Alabama

January 9, 1912

Rehearing Denied Jan. 30, 1912.

Appeal from Criminal Court, Jefferson County; S. L. Weaver, Judge.

Charley Barlew, alias, etc., was convicted of murder in the second degree, and he appeals. Affirmed.

The exceptions to evidence sufficiently appear from the opinion. The following charges were refused to the defendant "(1) If the jury believe that the defendant had reasonable apprehension to believe that his life or limb was in danger at the time he fired the fatal shot, then you must acquit the defendant. (2) Before the jury can convict the defendant, they must be reasonably satisfied that the defendant brought on the difficulty in which Martin was killed. (3) If the jury believe from the evidence that deceased had made threats to kill the defendant, and the defendant knew of the same, he had a right to believe this his life or limb was in danger. (4) If the jury believe that the defendant was free from fault in bringing on the difficulty, and his life or limb was in danger, you must acquit the defendant."

The jury returned the following verdict: "We, the jury, find the defendant guilty of murder in the second degree as charged in the indictment, and sentence him to ten years and one day imprisonment." The defendant objected to this verdict, whereupon the court took the papers from the foreman and changed the verdict so as to read as follows: "We the jury, find the defendant guilty of murder in the second degree, as charged in the indictment, and say that he shall suffer imprisonment in the penitentiary for ten years and one day." The bill of exceptions then recites that the jury retired a moment or two, and brought in the last set out verdict, whereupon the defendant moved in arrest of judgment because the jury had not been qualified as to relation kinship, or interest, that the verdict was void, and that the jury had been coerced into returning the verdict.

Bush &amp Bush, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

PELHAM, J.

The appellant's motion to establish a bill of exceptions in this case is not contested, and the motion is granted, and the bill of exceptions made a part of the record. The defendant was tried on an indictment charging murder in the second degree, and convicted of that grade of murder.

No evidence up to that time having been offered to show an element of self-defense attending the killing, the court properly refused to let the defendant show, by cross-examination of the state's witness Martin, the character of the deceased for being a quarrelsome, violent and turbulent man. Gilmore v. State, 141 Ala. 51, 37 So. 359; Morrell v. State, 136 Ala. 44, 34 So. 208; Gafford v. State, 122 Ala. 54, 25 So. 10; Rutledge v. State, 88 Ala. 85, 7 So. 335; Roberts v. State, 68 Ala. 156; Payne v. State, 60 Ala. 80; Eiland v. State, 52 Ala. 322; Franklin v. State, 29 Ala. 14; Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250; Quesenberry v. State, 3 Stew. & P. 308.

There was no error committed by the court in allowing the witness Martin to testify that there were powder burns on the face of the deceased. The witness showed that he had knowledge of and experience in the use of powder, and whether a witness possesses the necessary qualifications to testify as an expert is a preliminary question largely within the discretion of the court. Tesney v. State, 77 Ala. 33; L. & N. R. R. Co. v. Sandlin, 125 Ala. 585, 28 So. 40.

The evidence sought to be elicited from the witness Underwood with reference to what took place between the witness and deceased at a different place and prior to the difficulty that resulted in the homicide called for the conclusions of the witness. If the evidence was relevant, as being matters connected with the transaction, the witness should not have been asked what he endeavored to do, or what the defendant was trying to do, or what it appeared to him (witness) the defendant was trying to do, but should have been asked what was done, so that the jury could draw the conclusions from the facts as to whether from what was done the witness endeavored to prevent the deceased from going back to town, or that the defendant was trying to pull away from deceased, or that it appeared that defendant was not trying to get away from deceased. The questions asked called for the mere conclusions or opinions of the witness, and were properly refused. Knight's Case, 160 Ala. 58, 49 So. 764; Bettis' Case, 160 Ala. 3, 49 So. 781; Heningburg's Case, 153 Ala. 13, 45 So. 246; Weaver v. State, 1 Ala. App. 48, 55 So. 956.

The objections to the questions asked the witness Mrs. Orange about her son John Orange having a pistol before the difficulty, and what he said at that time, were properly sustained. John Orange was not shown to have taken any part in the fatal difficulty, and it was entirely immaterial what he said and whether he had a pistol prior to the difficulty. The defendant subsequently examined John Orange as a witness in his behalf, and received the full benefit of all that this party did preceding the difficulty. The trial court allowed a wide range to the defendant in examining this witness, permitting him to show what the witness believed in reference to the defendant's having some of his money, and the purpose that he and the deceased had in looking for the defendant prior to the encounter.

The court correctly refused to allow the defendant to show by his witness Mrs. Orange her uncommunicated purpose in going to the house of the defendant a short time before the difficulty, and the questions, "What did you do there?" "What did you say there?" were capable and calculated to elicit...