Culliver v. State

• Decision Date: 14 November 1916
• Docket Number: 4 Div. 421
• Citation: 73 So. 556,15 Ala.App. 375
• Parties: CULLIVER v. STATE.
• Court: Alabama Court of Appeals

73 So. 556

15 Ala.App. 375

CULLIVER v. STATE.

4 Div. 421

Court of Appeals of Alabama

November 14, 1916

On Application for Rehearing

Appeal from Circuit Court, Coffee County; H.A. Pearce, Judge.

Dave Culliver was convicted of manslaughter, and he appeals. On Rehearing. Reversed and remanded.

W.W Sanders, of Elba, and H.L. Martin, of Ozark, for appellant.

W.L Martin, Atty. Gen., and H.G. Davis, Asst. Atty. Gen., for the State.

EVANS J.

Appellant was indicted for murder; the jury found him guilty of manslaughter in the first degree.

The plea in abatement, misnomer, was without merit. Appellant was indicted as "Dave Culliver." His true name according to the plea is "Dave Cullifer." They are idem sonans, and the court properly sustained the demurrer. Rooks v. State, 83 Ala. 79, 3 So. 720.

The next insistence is that the court erred in giving the part of the oral charge excepted to. This excerpt or fragment of the charge set out in the bill of exceptions consists of a single sentence. When considered alone, unaided by the context of the charge, the instruction is incomplete and faulty. Whether what followed qualified and explained what went before we are unable to say from the meager excerpt. In Gardner's Case 96 Ala. 12, 11 So. 402, the court said:

"A disconnected sentence or part of a charge, although it does not describe all the constituents of the offense, will not of itself work a reversal. Where the whole charge given by the court ex mero motu is set out, the several parts must be construed together, and each part construed in the light of its context. Where, as in the present case, a mere passage or statement of the charge is excepted to, omitting the remainder of the charge, we must presume that the court properly charged the jury in regard to the fundamental intent or purpose which actuated the defendant, and followed it by the statement to which the exception is reserved."

Counsel insists that the court was in error in permitting witnesses to testify that appellant drew his pistol on the mother and sister of deceased after the shooting had occurred. The evidence, in substance, shows that two shots were fired by appellant at the deceased; that deceased notwithstanding he was mortally wounded, closed in on the appellant and engaged him in a tussle; that while they were thus engaged, deceased's sister and mother ran up, and the former pulled the deceased's arm from around the neck of appellant, and at the same time tried to take a pistol out of the hand of appellant. About this time appellant pulled himself loose, shoved the sister aside, and shoved his assailant into a ditch, where he almost immediately expired. Appellant, after pulling loose and shoving the deceased into the ditch, ran a short distance (some 2 or 3 steps, according to the testimony of the sister, Mrs. Matthews, and some 25 or 30 according to the testimony of the mother), and then...