Gurley v. State
| Decision Date | 09 June 1927 |
| Docket Number | 8 Div. 960 |
| Citation | 113 So. 391,216 Ala. 342 |
| Parties | GURLEY v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
Rance Gurley was convicted of murder in the second degree, and he appeals. Affirmed.
C.L Peck, of Albany, and J. Marvin Kelley, of Hartselle, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
Appellant was convicted of murder in the second degree. There was proof that he (defendant) killed deceased by shooting him with a pistol. The shot took effect in the right side of deceased near the hip, about the seventh or eighth intercostal space. The sister of deceased was with him after the wound was inflicted and testified that more than once deceased said that he was going to die; that Rance [defendant] had shot him and that "if he (Rance) could see him, and see how he was suffering he didn't believe he would have killed him for nothing." Deceased died five days later. The objection to this testimony was in general terms, and seems to have proceeded upon the theory that no sufficient predicate for the admission of a dying declaration had been laid. Such, at any rate, is the argument in brief of counsel for defendant, appellant, in this court. The predicate was sufficient. It was not necessary that deceased should have made a specific statement to the effect that he was conscious of impending death. The circumstances and the statements made by deceased very clearly warranted the inference that deceased felt that he was fatally wounded and would die. That was enough. Gerald v. State, 128 Ala. 6, 29 So. 614. Nor did the court commit error in excluding from the jury, or from its own consideration--if the proposed evidence was intended for the court--statements by the witness that deceased had previously had several "rows" in which he had been wounded, or that "he had been shot several times, worse than that," as defendant offered to show. Whether such experiences were calculated to generate a spirit of optimism which might be expected to survive the wound inflicted upon him by defendant, that at best was but a speculation which meant nothing in the presence of the circumstances in evidence.
Will Peck testified for the state saying, among other things, that he saw the shooting. Defendant laid a predicate and offered to impeach the witness by one Dodson; but an examination of the record discloses material differences between the predicate laid and the impeaching question. There was therefore no error in that ruling of the court which sustained an objection to the question asked of the impeaching witness. The state was allowed to ask several leading questions of this witness; but that was a matter within the discretion of the trial court, the witness being competent and the subject-matter of the proposed questions being relevant and material.
Essex Johnson was examined as a witness on behalf of defendant and cross-examined by the state. Afterwards the witness was recalled by the state, and, over defendant's objection the state's solicitor was permitted to ask questions deemed by defendant to be leading and not in rebuttal. This method of procedure is, ordinarily, within the discretion allowed to trial courts; nor does it...
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Whitt v. State, CR-96-0349.
...the defendant's requested written instructions may not be raised for the first time on the motion for new trial. See Gurley v. State, 216 Ala. 342, 113 So. 391 (1927); Hewitt v. State, 389 So.2d 157 (Ala.Cr. App.1980).' Coleman v. State, 420 So.2d 833, 834 Hunter v. State, 645 So.2d 370, 37......
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Duncan v. State
...and the subsequent requested charge was error, which we do not hold that it was, appellant's objections came too late. Gurley v. State, 216 Ala. 342, 113 So. 391 (1927); Hewitt v. State, 389 So.2d 157 The appellant's final contention of error is that the trial court's oral charge, when cons......
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Helton v. State
...653 (1967). Exceptions to the oral charge reserved for the first time in a motion for new trial cannot be considered. Gurley v. State, 216 Ala. 342, 113 So. 391 (1927); Snider v. State, 39 Ala.App. 234, 92 So.2d 163 (1957). Consequently the defendant, by failing to object to the court's ora......
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Nichols v. State
...improper, we are not to be understood as intimating that it was so prejudicial that it would be grounds for reversal. See Gurley v. State, 216 Ala. 342, 113 So. 391; Finney v. Long, 216 Ala. 628, 114 So. 200; Woodard v. State, 253 Ala. 259, 44 So.2d 241; Parker v. City of Birmingham, 36 Ala......