Norris v. State

• Decision Date: 08 May 1917
• Docket Number: 6 Div. 151
• Citation: 75 So. 718,16 Ala.App. 126
• Parties: NORRIS v. STATE.
• Court: Alabama Court of Appeals

75 So. 718

16 Ala.App. 126

NORRIS v. STATE.

6 Div. 151

Court of Appeals of Alabama

May 8, 1917

On Rehearing, June 5, 1917

On Rehearing.

Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.

Tony Norris was convicted of murder in the second degree, and he appeals. Affirmed.

Gray & Wiggins and C.D. Shepherd, all of Jasper, for appellant.

W.L Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen for the State.

SAMFORD J.

On the trial the defendant moved the court to quash the venire because the name of one of the jurors drawn and summoned for the week was not in the list served on the defendant. The record shows that this juror was not summoned, and therefore it was not proper to have included his name on the list furnished the defendant. Jones v. State, 74 So. 843; Hooten v. State, 9 Ala.App. 9, 64 So. 200.

The testimony for the state tended to show that the homicide was committed in a sudden rencounter; that the defendant was the assailant; that the defendant was armed with a deadly weapon when he entered into the difficulty. At the request of the state, the court gave this charge:

"if the jury believe from the evidence beyond a reasonable doubt that Tony Norris shot Wiley Dodd in this county at the time and place shown by the evidence, in a sudden rencounter or affray, that Norris was the assailant, that the shooting was done with a pistol which was concealed before the commencement of the fight, and that Wiley Dodd had no deadly weapon drawn, then such killing cannot be less than murder in the second degree."

The giving of this charge was not error. Code 1907, § 7086; Scoggins v. State, 120 Ala. 369, 25 So. 180. The charge was not abstract, but was borne out by the tendencies of the evidence for the state.

Charge C, given at the instance of the state, as follows:

"One who provokes a difficulty, who by his own wrong contributes to a situation out of which arises a necessity to take the life of another to preserve his own, cannot invoke the doctrine of self-defense to justify the homicide he commits in such difficulty; cannot plead a necessity to kill which arose from his own wrong"

"--is without error and asserts a correct proposition of law.

It was in evidence that immediately preceding the killing, and so close to it as to be a part of the res gestae, there was a quarrel going on between Wideman and the defendant, and therefore the court did not err in refusing charges to the effect that the jury could not consider that testimony. It was competent evidence for any purpose. This applies to charge 3.

Charges 8 and 13 as follows:

"The court charges the jury that, if they believe that the circumstances and surroundings attending the defendant at the time he fired the shot were such as to create in his mind a reasonable belief that he was in danger of losing his life or of suffering great bodily harm, and there was no reasonable way of him to escape in safety, then the burden is on the state to prove beyond all reasonable doubt that he was not free from fault in commencing the difficulty with the deceased; and the court charges the jury that the fact alone that the defendant had engaged in a quarrel with one Luther Wideman is not sufficient to show that he was at fault in bringing on a difficulty with the deceased," and, "I charge you, gentlemen of the jury, if you believe that tony Norris was assailed by more than one person, and that it reasonably appeared to him that they were present acting together to take his life or do him serious bodily harm, and there was no reasonable and safe mode of retreat, then Tony Norris had a right to act upon the hostile demonstrations of either of them and to kill either of them"

"--are bad, among other reasons, because the rule is that the facts should create in the mind of a reasonable man, not in the mind of the defendant--and the defendant must entertain such honest belief--the apprehension, etc. For aught we know, defendant might not have had a reasonable mind.

Charge No. 9 in the following words:

"I charge you that, if the defendant has proved a good character as a man of peace, the law says that such good character may be sufficient to create or generate a reasonable doubt of his guilt, although no such doubt would have existed but for such good character"

--was covered in the court's general charge to the jury. The learned judge writing the opinion in the Fields' Case, 47 Ala. 608, 609 (11 Am.Rep. 771), says:

"I do not say the evidence of good character should have created a reasonable doubt in the minds of the jurors in this case, when considered in connection with the other evidence. But, as the law permits evidence of good character in criminal cases, it certainly intends it for the consideration of the jury, and it is for the jury alone to determine whether, when considered with the other evidence, it does or does not create a reasonable doubt as to the defendant's guilt."

The court in its general charge correctly instructed the jury to this point, and the refusal of the charge was not error. 6 Mayf.Dig. 109, § 125.

The testimony objected to by the defendant on pages 15, 17, 19, 27, and 30 of the transcript was all so closely related to the difficulty as to be a part of the res gestae, and the court did not err in overruling the defendant's objections.

The defendant having brought out a part of a conversation on the cross-examination of the witness Andy Norris, the state could bring out the entire conversation, and the court did not err in permitting the state to do this. Gibson v. State, 91 Ala. 64, 9 So. 171.

The defendant on cross-examination asked the witness Miskelley this question:

"Then you and he went over the situation and what you know about it?"

Objection was made and sustained to this question. Immediately following the defendant asked the following question:

"If at that time and place you, in the presence of the other witness and Wideman and Barton, didn't go over what happened down there."

No objection was made to this, and the witness answered it without objection. This cured any possible error that there might have been in refusing to allow the first question.

Allowing the broadest latitude for cross-examination, erroneous rulings on evidence are not prejudicial where the defendant afterwards elicits the testimony which he first sought to obtain. Sears v. State, 10 Ala.App. 76, 6 So. 300.

The court did not err in admitting the...