Peagler v. State

• Decision Date: 25 May 1922
• Docket Number: 3 Div. 546.
• Citation: 93 So. 536,207 Ala. 586
• Parties: PEAGLER v. STATE.
• Court: Alabama Supreme Court

93 So. 536

207 Ala. 586

PEAGLER v. STATE.

3 Div. 546.

Supreme Court of Alabama

May 25, 1922

Appeal from Circuit Court, Butler County; A. E. Gamble, Judge.

Will Peagler was convicted of murder in the first degree, and he appeals. Reversed and remanded.

R. B Smythe, of Greenville, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

THOMAS J.

The indictment and trial for murder in the first degree resulted in the imposition of the death penalty. The verdict and judgment conform to the requirements of the statute, and the record proper presents nothing for review.

Two questions only are presented by the bill of exceptions, viz The permission by the court, over defendant's objection that a state witness be re-examined; and the refusal of written charges requested by defendant. No error was committed in permitting the witness Mason Henderson to be recalled and further examined; and no abuse of discretion was committed in allowing that witness to retestify of the res gestæ of the homicide, that the decedent did not strike the defendant and that he had no weapon in his hand at the time of the homicide. 4 Michie Ala. Dig. p. 562, § 759(5); Jarvis v. State, 138 Ala. 17, 34 So. 1025; Hall v. State, 137 Ala. 44, 34 So. 680.

If the refused charges were substantially and fairly covered by the oral charge or by special instructions given, the refusal of a charge so covered is not a cause for reversal. Acts 1915 p. 815; Allen v. Alger-Sullivan Lumber Co., 205 Ala 352, 87 So. 442; Brilliant Coal Co. v. Barton, 205 Ala. 89, 87 So. 830; Thomas Furnace Co. v. Carroll, 204 Ala. 263, 85 So. 455. In the oral charge the court instructed the jury of the elements of manslaughter in the first degree; yet this did not fully cover the aspect of the evidence sought to be presented in refused charge B. Since the decision in Brewer v. State, 160 Ala. 66, 49 So. 336, "cooling time" is said to be "usually, if not always, a question for the court under the facts and circumstances of the case"; and the contrary expression contained in Hooks v. State, 99 Ala. 166, 168, 13 So. 767, was qualified. The announcement contained in the Brewer Case was in effect applied in Thomas v. State, 150 Ala. 31, 40, 43 So. 371; Felix v. State, 18 Ala. 720, 724; Keiser v. Smith, 71 Ala. 481, 26 Am. Rep. 342; McNeill v. State, 102 Ala. 121, 15 So. 352, 48 Am. St. Rep. 17; Stillwell v. State, 107 Ala. 16, 19 So. 322; Jarvis v. State, supra; Logan v. State, 155 Ala. 85, 46 So. 480. In Reeves v. State, 186 Ala. 14, 65 So. 160, quoting from the Hooks Case, the portion of that decision criticised in Brewer's Case was omitted. There must be a "concurrence of adequate provocation and sudden passion to reduce a homicide to manslaughter." Peel v. State, 144 Ala. 125, 39 So. 251. An examination...