Davis v. State

• Citation: 21 Ala.App. 649,111 So. 645
• Decision Date: 18 January 1927
• Docket Number: 4 Div. 256
• Parties: DAVIS v. STATE.
• Court: Alabama Court of Appeals

111 So. 645

21 Ala.App. 649

DAVIS v. STATE.

4 Div. 256

Court of Appeals of Alabama

January 18, 1927

Rehearing Denied March 8, 1927

Appeal from Circuit Court, Covington County; N.D. Denson, Judge.

Otis Davis was convicted of first degree manslaughter, and he appeals. Affirmed.

Baldwin & Murphy, of Andalusia, for appellant.

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

BRICKEN P.J.

This appellant, defendant in the court below, was put to trial upon counts 1 and 2 of the indictment, each count charging the offense of murder in the second degree. He was convicted of manslaughter in the first degree, and the jury, by its verdict fixed his punishment at imprisonment in the penitentiary for five years. Judgment of conviction was accordingly pronounced and entered, from which this appeal was taken.

At the time of the fatal difficulty between defendant and the deceased this appellant was under the age of 16 years. The alleged killing occurred on December 13, 1925, and from the defendant's own testimony he became 16 years of age on the following March 21, 1926. The trial was had, from the judgment of which this appeal was taken, on May 27, 1926. The record discloses all this without dispute. The defendant was therefore, over the age of 16 at the time of the trial, but was a few months under 16 when the alleged killing occurred.

Before pleading to the merits of the indictment, the defendant interposed a special plea as follows:

"Comes the defendant, and for answer to the indictment in this cause pleads and says that this court has no jurisdiction to try and determine this cause for that he was, at the time the alleged offense was committed, if committed at all, under the age of 16 years, all of which the defendant is ready to verify, and prays judgment that this court should take no further jurisdiction or cognizance of the indictment aforesaid. Otis Davis.

"Sworn to and subscribed before me this the 26th day of May, 1926.

"Ralph A. Clark, Clerk."

It does not appear from the record that the court took cognizance of the above plea, and counsel for appellant inform us by brief and argument that no action thereon was taken by the court. Appellant insists that by such failure the court committed error to a reversal. We do not so conclude for, as hereinabove stated, it affirmatively appears that the defendant at the time of the trial was more than 16 years of age, and, this being true, the circuit court had jurisdiction of the person. It has been expressly so held in the case of Lane v. State, 20 Ala.App. 192, 101 So. 521. See, also, Macon v. Holloway, 19 Ala.App. 234, 96 So. 933.

The court properly allowed the defendant to show that there had been former difficulties between him and the deceased, but there was no error in the court's rulings in not allowing the details of said former difficulties to be given in evidence, and ruled correctly in not allowing the defendant to testify: "I told Sam that I was not mad with him and to let's be friendly." This alleged...