Degg v. State

• Decision Date: 09 April 1907
• Citation: 150 Ala. 3,43 So. 484
• Parties: DEGG v. STATE.
• Court: Alabama Supreme Court

43 So. 484

150 Ala. 3

DEGG v. STATE.

Supreme Court of Alabama

April 9, 1907

Appeal from City Court of Gadsden; John H. Disque, Judge.

Yolande Degg was convicted of murder, and appeals. Reversed and remanded.

The defendant and one Dean and Hasson were jointly indicted for the murder of Womack by shooting him with a pistol. The evidence tended to show the shooting as alleged in the indictment and that the defendant was one who fired the pistol. There was other evidence tending to show a participation in the difficulty by Dean and Hasson. What is said in reference to the admission of testimony of the absent witnesses sufficiently appears in the opinion of the court. The testimony for the defendant tended to show self-defense and that before firing the fatal shot she had been struck in the face by deceased with brass knucks. The ruling of the lower court on the admission and rejection of testimony is not discussed in the opinion and will not be here set out. The oral charge of the court is set out in full, and a great many exceptions are reserved thereto, but the only one insisted on is as follows: "You have a right, gentlemen of the jury, to look to the fact that Will Hasson and Hazel Dean are jointly indicted with this defendant in determining what weight you will give to their testimony." The instructions of the court in reference to what weight should be given to the testimony of the absent witnesses, taken down as therein stated upon the preliminary trial, sufficiently appear in the opinion. The following written charges were requested by the defendant and refused: "(32) The court charges the jury that, unless the minds of each individual member of this jury is satisfied beyond all reasonable doubt and to a moral certainty that Yolande Degg is guilty as charged in the indictment, then you cannot convict her of murder in the first degree." "(36) The court charges the jury that, to render the defendant at fault in bringing on the difficulty by the use of words, it must appear that such words had some effect in producing the difficulty or encouraging the difficulty. If the words were profane, but did not in fact have any effect in producing or encouraging the difficulty, then defendant, if she used such words, could not be said to be at fault in bringing on the difficulty by reason of the use of such words." "(40) The court charges the jury that if the deceased assaulted the defendant without knucks on his hands, but with rings on his hands, and if these rings were sufficient to enable deceased to inflict great bodily harm upon defendant then if defendant was free from fault in bringing on the difficulty, and at the time of firing the fatal shot there was an imperious, impending necessity, either real or apparent, to take the life of Womack to save herself from great bodily harm, then defendant is entitled to an acquittal." What happened in reference to the refusal of the court to permit the defendant to use Manning as a witness sufficiently appears in the opinion of the court. The defendant was convicted of murder in the second degree, and sentenced to the penitentiary for 22 years.

Knox Acker & Blackmon and Goodhue & Blackwood, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DOWDELL J.

The laying of a predicate for the introduction in evidence of the testimony of the witnesses Girard and Moore, that had been given by them on the preliminary trial, was matter addressed to the court, and not to the jury. It was, therefore, of no importance that this was done in the absence of and without the hearing of the jury. The evidence so sought to be introduced of the witnesses Girard and Moore, the former having died and the latter having removed beyond the jurisdiction of the court, was secondary evidence, and it was necessary, under the law, that a proper and sufficient predicate should be laid before it could be admitted. It appears from the record that the testimony of these two witnesses, had on the preliminary trial, was not reduced to writing by the magistrate before whom the trial was had, nor by any one under his direction; but it does appear that it was taken in stenographic notes by a stenographer who was employed by one of the parties to the prosecution. The stenographic notes were not transcribed or put in type and read over to and subscribed by the witnesses during or before the termination of the preliminary trial. At...