Husch v. State
| Decision Date | 15 May 1924 |
| Docket Number | 7 Div. 431. |
| Citation | 211 Ala. 274,100 So. 321 |
| Parties | HUSCH v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.
James Husch, alias, etc., was convicted of murder in the first degree, and appeals. Affirmed.
Isbell & Scott, of Ft. Payne, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
Several witnesses testified that the deceased stated just before he made the written statement which was received in evidence as his dying declaration that he was going to die and the declaration itself was prefaced by the statement that he believed it to be his dying statement. On this predicate the statement was properly admitted as a dying declaration. 14 Michie's Digest, 114, § 182.
The trial court admitted in evidence, over defendant's objection, the shirt, trousers, and belt worn by deceased at the time he was killed. Such articles should never be offered or received in evidence unless they "have some tendency to shed some light upon some material inquiry." Rollings v. State, 160 Ala. 82, 86, 49 So. 329; Pearson's Case, 97 Ala. 219, 12 So. 176; A. G. S. R R. Co. v. Bell, 200 Ala. 562, 76 So. 920.
There was a controversy in this case as to the position of the deceased when defendant fired the second shot-that is, whether he was facing defendant, or had turned to flee. Necessarily the lethal bullet penetrated the clothing of deceased, and so far as the record shows it may have passed through both shirt and trousers. If so, these garments were properly admitted in evidence. Terry v. State, 203 Ala. 99, 82 So. 113, and cases cited supra.
It may be that there was no justification for the introduction of the belt, but in any case it could do no harm when viewed in connection with the other clothing, and can furnish no ground for a reversal of the judgment.
The homicide was committed in August, and the state was allowed to show that one night in the preceding May defendant went to the witness' house and said he was down there "to have a reckoning with Black [the deceased]." It is insisted for defendant that this language does not import a threat, and was not admissible as such. The primary meaning of "reckoning" is a counting or computing; but it is also used figuratively in the sense of an "adjustment of reward or penalty on the basis of merit." New Standard Dictionary. In the latter sense it is commonly and frequently used as a prophecy or a threat of punishment, and it was for the jury to say what defendant meant by its use on this occasion, in the light of the evidence before them. We think the statement was properly admitted.
Complaint is made of other rulings on the evidence. We have examined all of them, and find no prejudicial error.
Refused charge 3 sought to exclude a conviction of murder without excluding the existence of malice, and was also argumentative.
Refused charges 5 and 12 correctly distinguished between murder and manslaughter in the first degree, but they were specifically covered by given charge 5, and also by the oral charge.
Refused charge 6 was fully covered by the oral instructions.
Refused charges 8, 9, and 11, are based on the theory that deceased made a second dying declaration in writing which was in the possession of the prosecution, and sought to instruct the jury that the failure of the prosecution to offer that statement in evidence authorized them to presume that it was less favorable to the state than the dying declaration in evidence. There was no evidence, however, that the solicitor had any such statement in his possession, or had ever even heard of its existence, or, indeed, that it was made in writing. One witness stated merely that "an officer came to the hospital and took his [deceased's] testimony in regard to the matter while we were preparing for the operation." Who the officer was, or what kind of an officer, or at whose instance he came, does not appear. Under such circumstances no presumption could arise as to the character of the statement referred to. Jackson v. State, 77 Ala. 18 (4). Moreover, if the solicitor had had such a statement in his possession, defendant could have required its production by a rule of the court if he thought it was favorable to him.
Refused charge 10 was purely argumentative.
Refused charge 14 was faulty...
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...without it the defendant's trial would be fundamentally unfair.' Cooks, 50 Ala. App. at 54, 276 So.2d 634. See also Husch v. State, 211 Ala. 274, 276, 100 So. 321 (1924). ('Moreover, if the solicitor had had such a statement in his possession, defendant could have required its production by......
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