Reaves v. State, 4 Div. 971.
| Decision Date | 25 November 1947 |
| Docket Number | 4 Div. 971. |
| Citation | 33 So.2d 376,33 Ala.App. 296 |
| Parties | REAVES v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Dec. 16, 1947.
J. W. Brassell, of Phenix City, for appellant.
A A. Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty Gen., for the State.
The following charges were refused to defendant:
'1. The court charges the jury that if you believe from all the evidence beyond a reasonable doubt that the deceased attempted to attack the defendant, using a shot gun for that purpose in a threatening manner then the defendant had the right to act upon the appearance of things as a reasonable minded person would under such circumstances, and if you believe that from all the evidence then you would be authorized to discharge the defendant.
On an indictment charging murder in the second degree, the appellant was convicted of manslaughter in the first degree.
In keeping with the verdict of the jury, the trial judge sentenced the defendant to imprisonment in the State penitentiary for a period of twelve months.
Without dispute in the evidence the accused struck the deceased on the head with a hoe. From the effects of the wound death ensued the day following the affray.
The factual issues center around the inquiry of whether or not the appellant was acting in self defense, as he claimed. On this question the evidence was in conflict.
The record is brief, and there are comparatively few matters presented for our review.
In the main the burden of the brief of appellant's counsel is the insistence that we should charge error because of an occurrence, the account of which we copy from the record:
'Cross Examination by Mr. Borders:
'Counsel for the defendant objected to the above question, which objection was overruled by the court.
'By Mr. Brassell: And we move that a mistrial be declared, as the record, if he ever killed anybody is the best evidence.
'By Mr. Borders: He knows it too.
'By Mr. Borders:
'By Mr. Brassell: Now, if your honor please----
'By Mr. Borders:
'By Mr. Borders: I withdraw it.
'By the Court: That goes out.
'By Mr. Brassell: I want to ask the court to instruct the jury--it is highly prejudicial to this defendant and we move that the record show that----
'By the Court: That I tell this jury--$?
'By Mr. Brassell: That it was prejudicial.
'By the Court: Gentlemen, that testimony is not for the consideration of the jury--that with regard to his former conviction for some other offense, and it is not to be considered by you under any circumstance, and it is expressly excluded from your consideration.'
Due to the absence of rulings by the court and exceptions by counsel, and the apparent omission of some of the procedure, we cannot intelligently and accurately make a review. In any event, it appears that the judge instructed the jury finally to disregard the testimony relating to the prior record of the accused.
What some other person, not in any way implicated in the affray may...
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