Fancher v. State
| Decision Date | 14 June 1928 |
| Docket Number | 7 Div. 779 |
| Citation | 117 So. 423,217 Ala. 700 |
| Parties | FANCHER v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Shelby County; E.S. Lyman, Judge.
Walter B. Fancher was convicted of murder in the second degree, and he appeals. Affirmed.
L.H Ellis, of Columbiana, for appellant.
Charlie C. McCall, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty Gen., for the State.
In homicide cases, where the evidence presents an issue of self-defense, the defendant as well as the state may prove the fact of a prior difficulty. It goes to the inquiry as to who was the aggressor. Stewart v. State, 78 Ala 436; Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am.St.Rep. 17.
Until some evidence of self-defense is produced, the court is not in error in refusing such evidence at the instance of the defendant. At the time the defendant was asked about the meeting between himself and deceased at a poker game in the woods on the forenoon of the day of the killing, no evidence of self-defense had been produced. The question, "State what was said and done at that time," called for the details of the alleged difficulty, and was properly disallowed for that reason. Gordon v. State, 140 Ala. 29, 36 So. 1009; Fleming v. State, 150 Ala. 19, 43 So. 219.
E.L. Day testified that he was an eye-witness to the killing. A sharp issue was presented as to his whereabouts at the time H.M. Mathoney, witness for the state, testified to Day's presence near the scene of the shooting "about two minutes" before it occurred.
On cross-examination, the witness was examined at length with a view to test his accuracy as to time. Defendant drew out that it was not over two minutes; that witness had no watch and was hard to fool as to time; that he had taken occasion to time himself in his work; etc. Defendant then asked that the witness be timed by a watch in the hands of counsel or a juror to test his judgment as to when one or two minutes had elapsed.
In general, the cross-examination of a witness upon collateral matters to test his memory and the like is within the discretion of the court. It should not be carried to the point of diverting the minds of the jury from the main issues by experiments of this kind. The court properly declined the request. Cox v. State, 162 Ala. 66, 50 So. 398.
The state's evidence tended to show that one Sims participated with defendant in the killing, was in company with defendant and deceased during the day, and handed to defendant the pistol with which he shot deceased. In this connection evidence that Sims was seen with a pistol some hours before was admissible. Evidence tended to show defendant and Sims both fled from the scene of the shooting immediately, and that Sims was seen to drop or throw down something as he ran. Evidence that a bottle of whisky was found at that point an hour or two later was competent. This was part of the res gestae.
Portions of the evidence of witness Day on the preliminary trial, offered by the defendant, were admissible only for the purpose of impeachment of the witness. They were not original evidence of the facts deposed to, and the court did not err in restricting the evidence to purposes of impeachment.
Defendant's witness Whatley testified that defendant, deceased, and Sims were all under the influence of liquor some fifteen or twenty minutes before the killing. Defendant then offered to prove that deceased had the whisky at that time. We see no special reason why the court should have refused this evidence. But there was no effort to show that the defendant designedly got the deceased under...
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McCray v. State, 1 Div. 664
...v. State, 252 Ala. 607, 42 So.2d 600, it was held to be argumentative and misleading under the decision of the court in Fancher v. State, 217 Ala. 700, 117 So. 423. In the case at bar when informed of her statutory privilege not to become a witness against her husband, defendant's wife elec......
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Roberson v. State
...jury. Lockett v. State (Ala.Sup.) 117 So. 457; Roberson v. State (Ala.Sup.) 117 So. 412; Kennedy v. State, 182 Ala. 10, 62 So. 49; Fancher v. State, supra; Hanners State, 147 Ala. 27, 41 So. 973. The evidence of joint participation in the common purpose, and their presence when the shot was......
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Turner v. State
...it neglects a most important aspect of impeachment of a witness, i. e., that the contradiction be upon a material matter. Fancher v. State, 217 Ala. 700, 117 So. 423. The third contention would, in effect, elevate a birth certificate over the hand and seal of the State Registrar of Vital St......
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Byrd v. State
...State, 194 Ala. 11, 69 So. 941, 2 A.L.R. 509; Jackson v. State, 78 Ala. 471; Sullivan v. State, 102 Ala. 135, 15 So. 264; Fancher v. State, 217 Ala. 700, 117 So. 423. Under the view of the case which we have here expressed, there was no error in the ruling of the court on the matter which h......