Eaton v. State

• Decision Date: 17 June 1913
• Citation: 8 Ala.App. 136,63 So. 41
• Parties: EATON v. STATE.
• Court: Alabama Court of Appeals

63 So. 41

8 Ala.App. 136

EATON v. STATE.

Court of Appeals of Alabama

June 17, 1913

On Application for Rehearing, July 8, 1913

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

John Eaton was convicted of manslaughter, and he appeals. Affirmed.

Charge 15 is as follows: "Unless you believe from the evidence that a conspiracy to assault Sarge or Shelt Kennedy had been formed between John Pearce prior to the time the box of cartridges was given Dyer by Pearce, then you cannot consider the evidence as to Pearce giving Dyer the cartridges."

"Charge 13. If the defendant did nothing more than be present at the difficulty and have a gun with him, then your verdict should be for the defendant."

The oral charge set out in the bill of exceptions is as follows "Now, if a man assists another or encourages another by his presence--that is, if he does it consciously, knowingly purposely, with the knowledge that the other fellow understands that he is there as an encourager--why, under these circumstances he is an accomplice, and he is responsible for what the other party does, although he does not lift a hand."

Knox Acker, Dixon & Sterne, Tate & Arnold, and Blackmon, Merrill & Walker, all of Anniston, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

PELHAM, J.

Many of the questions presented on this appeal are determined in the companion case of Fowler v. State, 63 So. 40. The defendant in that case is a codefendant, jointly indicted with appellant, but separately tried and convicted at the same term of the city court, the appeals in both cases being submitted here at the same time. See Fowler v. State, present term. See, also, Kennedy v. State (Sup.) 62 So. 49 present term, a case involving the same tragedy, and in which the defendant was also a codefendant, jointly indicted with the appellant in this case.

Charge 15 singles out a part of the evidence for special consideration of the jury, and to give the charge would be to gratuitously accentuate that certain part or phase of the evidence. No duty rests upon the court to do this, and it cannot be put in error for refusing an instruction chargeable with such an infirmity. Hosey v. State, 5 Ala.App. 1, 59 So. 549; L. & N.R.R. Co. v. Price, 159 Ala. 213, 48 So. 814.

It is proper to refuse a requested instruction, though it asserts a correct principal of law, if it gives undue prominence to a certain part of the evidence. Hanchey v. Brunson (Sup.) 56 So. 971.

The original charge, which is attached to the transcript as being certified to this court for inspection, and which was refused by the trial court because "illegible," is certainly subject to that criticism. It is very carelessly written, or scrawled, in pencil upon a leaf taken from a stenographers' notebook (or like paper), and contains numerous awkward and rough erasures, interlineations, and scratches. The chirography thus displayed to us in this condition in the original charge has been found to be beyond the ability of the members of this court to decipher, after careful scrutiny and critical examination, without the aid of the typewritten translation furnished to us, that was not before the judge of the primary court. A judge is not called upon to delay a trial in an endeavor to unravel the difficulties of deciphering unintelligible terms or writing in a charge, but may, as the trial judge did in this case, refuse it as illegible, without being put in error.

It would not have been proper for the court to give the defendant the general charge on the second count of the indictment, averring the killing to have been done by shooting with a pistol, as it was for the jury to say, under the evidence in this case, whether the bullet wounds testified to by the physician and other witnesses were produced by shots fired from a pistol or some other firearm.

Besides, although it be conceded that the deceased did not die from a wound inflicted by a shot from a pistol, still the defendant would not be entitled to a charge directing an acquittal; he might even in that case have been convicted on that count of a felonious assault. Talley v. State, 174 Ala. 101, 57 So. 445.

The court properly refused the requested instructions assuming that the defendant could not be found guilty as an aider or abettor. Talley v. State, 174 Ala. 101, 57 So. 445. The evidence showed that the defendant was present at the time of the commission of the offense; there was evidence affording an inference that he was present, in pursuance of a common enterprise or adventure, having in contemplation the commission of the offense charged, to render assistance, if necessary, or support or encourage by his acts, words, or presence the actual perpetrator, and, if so, he was an aider or abettor. Jones v. State, 174 Ala. 53, 57 So. 31.

That part of the oral charge of the court, set out in the bill of exceptions, to which an exception was reserved is a fair and reasonably correct exposition of the law on the proposition treated. If it is subject to any criticism, it would be due to the fact that it is even more favorable to the defendant than he was entitled to have charged under the applicable rule of law. Jones v. State, supra; Pearce v. State, 4 Ala.App. 33, 58 So. 996.

From what we have said, and from an examination of the authorities cited in support thereof, it will be seen that the court was free from error in refusing charge No. 13.

There was no error in permitting the solicitor to show by the witness Dyer that the defendant and others with him proceeded on their journey after the killing. The movements of the defendant shortly before and after the commission of the crime are circumstances admissible in evidence. Dupree v. State, 148 Ala. 620, 42 So. 1004. See, also, 6 Mayfield's Dig. p. 353, § 31, subd. 371.

The question asked the witness Dyer by the defendant as to the defendant's being innocent of the crime so far as he knew referred to the witness the determination of the guilt or innocence of the defendant, and this was the question at issue, which it was the province of the jury alone to determine.

It was not improper for the court to permit the solicitor to call upon the defendant when under cross-examination to explain, if he could, the inconsistency of certain statements made by him with certain physical facts shown by the evidence. The range and extent of cross-examination, as has often been said, is always a matter largely within the discretion of the court, and we do not think the court permitted the solicitor to exceed the legitimate right to cross-examine the defendant in this particular, under the latitude allowed by the rules of law. Matters testing the accuracy of a witness' statement are legitimate subjects of inquiry upon cross-examination (Davis v. Anderson, 163 Ala. 385, 50 So. 1002), and when a defendant has offered himself as a witness in his own behalf, it is not improper to ask him a question on cross-examination seeking an explanation. Harrell v. State, 166 Ala. 14, 52 So. 345.

We have discussed the questions presented by brief in their order of presentation, and have examined the record as to all other matters. We find nothing requiring a reversal of the judgment of the lower court, and an affirmance will be ordered.

Affirmed.

On Application for Rehearing.

Counsel for defendant in an application for rehearing insist, with what seems to us some degree of force and plausibility, that charge 15 is not subject to the criticism made of it. The contention is that the vice of a charge that is condemned for singling out detached portions of the evidence consists in giving undue prominence to a part of the evidence for the consideration of the jury, the charge thus having a tendency to cause the jury to give undue weight to the evidence singled out. Our attention is called to the fact that charge 15 does not single out a detached portion of the evidence for the...