Clemmons v. State

• Decision Date: 20 June 1922
• Docket Number: 8 Div. 969.
• Citation: 18 Ala.App. 650,94 So. 245
• Parties: CLEMMONS v. STATE.
• Court: Alabama Court of Appeals

94 So. 245

18 Ala.App. 650

CLEMMONS v. STATE.

8 Div. 969.

Court of Appeals of Alabama

June 20, 1922

Rehearing Denied Oct. 24, 1922.

Appeal from Circuit Court, Lauderdale County; Charles P. Almon Judge.

Mack Clemmons was indicted on a charge of murder in the first degree. On his trial he was convicted of manslaughter in the first degree, and he appeals. Affirmed.

A. H Carmichael, of Tuscumbia, and Mitchell & Hughston, of Florence, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAMFORD J.

Charges 4 and 6, refused to defendant, omit the elements of self-defense, and for that reason, if no other, were properly refused. Moreover, the principles of law attempted to be stated in the charges were fully and correctly covered by written charges given at the request of defendant and by the court in its oral charge.

Charge 9 was an argument.

Charge 11 was the general charge, and, as there was ample evidence to sustain the verdict, the charge was properly refused.

Charge BB, was invasive of the province of the jury. It was a question for the jury to say, from all the evidence, whose gun it was that defendant used in committing the homicide.

The rulings of the court on the admission of evidence as to what took place between the defendant and a third party, at a different time and place, were manifestly free from error, and testimony as to a difficulty between defendant and a third party was also properly excluded.

It is insisted in brief of counsel that the court "continuously throughout the record consistently refused to allow defendant to prove that the gun which he was refusing to surrender to Dalton Johnson was his own shotgun, and not that of Dalton Johnson," and they add by way of comment, "This was horribly and palpably erroneous."

The record does not bear out this statement. The state did not undertake to prove that the shotgun then in the possession of defendant was the property of Dalton Johnson, Clara Hill, a state's witness, saying, "I don't know whose gun it was." Turner Hill, another state's witness, said "I don't know whether it was a single or double barrel gun." Henry Hill, another state's witness, said: "I reckon he had Dalton's gun; I don't know whether he did or not; he had had it." This being all the testimony for the state on that question, defendant was permitted to testify, without objection, "when I left home after the trouble, I carried my gun," and again, "The gun I took with me when I went to Squire Lyles was my own gun." So, if the evidence is important, the defendant had full benefit of it without dispute, and all of those questions asked with reference to another gun, were clearly for the purpose of getting into the evidence the details of another difficulty between...