Dukes v. State

• Decision Date: 13 December 1923
• Docket Number: 1 Div. 267.
• Citation: 98 So. 368,210 Ala. 442
• Parties: DUKES v. STATE.
• Court: Alabama Supreme Court

98 So. 368

210 Ala. 442

DUKES v. STATE.

1 Div. 267.

Supreme Court of Alabama

December 13, 1923

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Monroe Dukes was convicted of murder in the first degree, and appeals. Affirmed.

Chas W. Tompkins, of Mobile, for appellant.

Harwell G. Davis, Atty. Gen., and O. B. Cornelius, Sp. Asst. Atty Gen., for the State.

GARDNER J.

Appellant was convicted of murder in the first degree, with the infliction of the death penalty.

The first question presented, relates to the action of the court in overruling the motion for a new trial. Neither the motion nor any reference thereto appears in the bill of exceptions and under the uniform rulings of this court the appellant is deprived of the right to have the same here reviewed. Stover v. State, 204 Ala. 311, 85 So. 393; Ex parte Thomas, 207 Ala. 662, 93 So. 521; Akin v. Chancy Bros., 207 Ala. 523, 93 So. 408.

The defendant was charged with the killing of one Daisy Spencer by shooting her with a pistol, and one John Hill, an eyewitness, testified as a witness for the state to the effect that defendant shot the deceased with a derringer pistol. The witness also was cross-examined by the defendant and, at the close of the cross-examination, the state was permitted on redirect examination to question the witness as to whether or not he was looking at the deceased when she was shot, and how the defendant was holding the pistol when he saw the defendant. The objection to this testimony was based upon the ground it was not in rebuttal. The testimony was elicited for the evident purpose of making more clear some of the testimony of the witness on direct examination, and the further examination of this witness in this manner was a matter resting largely in the discretion of the court, and in this there was no error.

This same witness, in his further examination, in using the expression "he just had it in his hand," clearly made reference to the defendant as appears from his previous testimony, and the question presented by the fourth assignment of error needs no further discussion.

There was evidence that the defendant made a voluntary statement, which was reduced to writing. The general objection on the part of the defendant to the introduction of this statement was sustained, and we do not find where it was subsequently offered as evidence. It does not appear in the bill of exceptions, and nothing is presented in the fifth assignment of error calling for further consideration.

In the sixth assignment of error the appellant complains that the court permitted the state to ask of one of its witnesses a leading question. This was a matter resting largely in the discretion of the trial court (Denson v. Acker, 201 Ala. 300, 78 So. 76), and no abuse of this discretion is here shown.

The evidence for the state was to the effect that the defendant shot the deceased with a derringer pistol. The length and size of a derringer pistol was therefore proper evidence; and the evidence in that respect was properly admitted.

The eighth...