French v. State, 4 Div. 798.

• Decision Date: 19 January 1932
• Docket Number: 4 Div. 798.
• Citation: 141 So. 713,25 Ala.App. 53
• Parties: FRENCH v. STATE.
• Court: Alabama Court of Appeals

141 So. 713

25 Ala.App. 53

FRENCH v. STATE.

4 Div. 798.

Court of Appeals of Alabama

January 19, 1932

Rehearing Denied March 22, 1932.

Appeal from Circuit Court, Dale County; J. S. Williams, Judge.

William E. French was convicted of manslaughter in the first degree and he appeals.

Affirmed.

Certiorari denied by Supreme Court in French v. State, 141 So 717.

Sollie & Sollie, of Ozark, for appellant.

Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.

SAMFORD J.

The defendant, while under the influence of whisky, killed his own son, by shooting him with a gun. The indictment was for murder in the first degree and the defenses were not guilty self-defense, and insanity. There was also evidence tending to prove a drunken condition of defendant at the time of the homicide, which rendered the defendant incapable of a formed design to take life. The jury evidently accepted the latter theory and returned a verdict of guilty of manslaughter in the first degree and fixed his punishment at ten years in the penitentiary.

On the trial the state examined one Bartow Mattox who testified to the following state of facts:

"I saw Mr. French that morning before the shooting. I also saw Walter French, he came out of the field where I was plowing. The first time I saw Walter he was between the house and the barn. Just a short time before the shooting I heard Mr. French say 'He says my boy you had just as well come on now and bring my money.' At that time Mr. French was in the south corner of his yard and the boy was going down the road. I never saw the boy at that time. I did see them together before that.

"The first I knew of any of it, I went to the barn to catch my mule and I heard a row or fuss in the house and I went to the porch and was putting the harness on my mule, the harness lay on his porch. I heard his father tell him 'I give you until sun up to get my money or I am going to shoot you.' Both of them were then inside the house but I did not see anybody but Mr. French and I saw him through the window. He picked up a gun and I took my mule and went on to the field. The sun was just beginning to rise, you could see the edge of it. I went to plowing and the boy came out there. The boy then went back there to the house and I saw them again out there close to the crib and Minnefield Newsom was up there and Mr. French went and put his gun back up in the house. He did not bring the gun out until Minnefield left, but he then came back out of the house with the gun. At that time Walter was out close to the crib and came to the edge of the porch. Minnefield came up there again and defendant went back in the house with his gun and it wasn't long after Minnefield left before the boy went down the road. The boy left the house and went down the road and that is when Mr. French come out in the yard and made the remark for him to come on there. He said 'all right, my boy, you had just as well come on home. I done told you I give you until sun up to get my money and if you don't come on I'll hunt you up like a rabbit and I'll shoot you down where I find you."' The defendant had his gun with him at that time and was going in the direction of the boy. "Something like fifteen or twenty minutes he came back up the road and sat down by his front door and laid his gun across his lap, and in something like I reckon fifteen or twenty minutes later than that the boy came back up the road and walked in at the front door by him, and I seen him in the back of the house at the crib and then he turned back to the kitchen. He turned back there and in a minute or two I heard the gun fire."

Upon defendant being examined as a witness in his own behalf, he offered to prove: "(1) That Mr. French, defendant, had $52.50 in his pocket; (2) that he got under the influence of liquor and forgot where he was and didn't wake up until the next morning; (3) that when he woke up his money was gone; (4) that his son (Walter French), at first denied having the money, but finally handed back to defendant $20.00 of it and said: 'You are lucky that I got this much of it, and did not give defendant the balance'; (5) that defendant went to the dining room door to ask his son for the balance of that money, the difference between the money he had when he went to bed the night before and the $20.00 his son had handed back to him. Counsel for defendant insisted before the court that said matters were each separately and all of them together explanatory of defendant's presence and of his asking for the money." The court refused to allow this testimony, and the defendant excepted. The facts sought to be proved were not a part of the res gestæ; were details of prior transactions and not related to statements testified to by the witness Mattox. As to (5) the defendant will not be allowed to testify to his intention or to make evidence for himself.

Upon this point the court instructed the jury as follows:

"You are not concerned with statements as to whether or not there was a robbery committed on the night before in the home or somewhere about the premises of defendant.

"All I allow to go to you in that connection is what was said by the defendant and what the witness for the state undertakes to say was said with regard to a threat.

"As to whether or not the money was actually stolen the night before is not for your consideration."

These excerpts clearly state the law regarding this question. Hurst v. State, 21 Ala. App. 313, 108 So. 77; Bluett v. State, 151 Ala. 41, 44 So. 84; Eden v. State (Ala. App.) 129 So. 797.

Appellant cites numerous authorities holding that, where one party to a suit has brought out a part of a conversation, the adverse party is entitled to bring out the whole conversation, if he so desires, but this rule does not apply to particulars of former transactions not constituting a part of the res gestæ, or tending to shed light on the issues. The above rule is fully stated in Gary v. State, 18 Ala. App. 367, 92 So. 533. There was no exclusion by the court of what deceased said at the time of the difficulty. That evidence was admitted without objection.

There was no error in refusing to give, at defendant's request, written charge, which for convenience we have marked (1). This charge fails to hypothesize an act of violence, on the part of defendant, from which ordinarily, in the usual course of events, death or great bodily harm might result. Reynolds v. State, 154 Ala. 14, 45 So. 894.

Refused charges 2, 3, 15, and 21 were covered by the court in its general charge. Moreover, charge 21 is argumentative, involved, and misleading.

The refused charges requested by defendant referring to the plea of insanity were all fully covered by the court in its able and lucid charges on this question. In this charge the jury was fully instructed as to every right to which the defendant was entitled under such a plea.

The normal sexual relations between defendant and his wife growing out of the fact that he was thirty-one years her senior are...