Stevenson v. State

• Citation: 90 So. 140,18 Ala.App. 174
• Decision Date: 05 April 1921
• Docket Number: 8 Div. 754
• Parties: STEVENSON v. STATE.
• Court: Alabama Court of Appeals

90 So. 140

18 Ala.App. 174

STEVENSON v. STATE.

8 Div. 754

Court of Appeals of Alabama

April 5, 1921

Rehearing Denied June 7, 1921

Appeal from Circuit Court, Lauderdale County; C.P. Almon, Judge.

Tom Stevenson was indicted for murder in the first degree, and convicted of murder in the second degree, and he appeals. Affirmed.

Certiorari denied 90 So. 926.

The defendant is alleged to have killed one Carl Anderson, a deputy sheriff; the insistence of the state being that he knew that the persons who approached him were officers of the law, attempting to arrest him for a violation of the state prohibition law, and the defendant contending that he was unaware of the identity or character of the persons, and was under the impression, reasonably created and entertained, that they were robbers or other persons attempting to rob him.

The following are the charges mentioned in the opinion as having been refused to the defendant:

(1) The court charges the jury that the bare fear of the commission of the attack, to prevent which defendant used a deadly weapon, is not sufficient to justify it, but the circumstances must be sufficient to excite the fears of a reasonable man, and the attacking party must have acted under the influence of such fears alone. It is not necessary however, to justify the use of a deadly weapon, that the danger be actual; it is enough that it be apparent danger such an appearance as will induce a reasonable person in defendant's position to believe that he was in imminent danger of great bodily harm. Upon such appearance the party may act with safety, nor will he be held accountable, though it would appear afterwards that the indications upon which he acted were wholly fallacious and that he was in no actual peril. The rule in such a case is that: What would a reasonable person, a person of ordinary caution, judgment and observation, in the position of defendant, seeing what he saw, and knowing what he knew, honestly believe from the situation and these surroundings? If such reasonable person, so placed, would have been justified in believing himself in such peril, and acting upon such appearances.

Indorsed upon this charge is the following: "Refused, because the charge is not complete, and is not intelligent, as written."

(5) Unless each juror is separately and severally satisfied, beyond a reasonable doubt, of the defendant's guilt, you should find him not guilty.

The other facts sufficiently appear from the opinion of the court.

Mitchell & Hughston, of Florence, A.H. Carmichael, of Tuscumbia, and Smith, Wilkinson & Smith, of Birmingham, for appellant.

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

BRICKEN P.J.

The defendant was indicted for murder in the first degree. On January 5, 1920, the defendant was duly and legally arraigned upon this indictment, and, being present in open court and attended by his counsel, he pleaded not guilty, and the 9th day of January, 1920, was set as the day for the trial. On that day (January 9, 1920) the defendant for the first time filed a plea in abatement to the indictment. The court sustained the motion of the solicitor to strike said plea, upon the grounds that the defendant had on a prior day of the court plead to the merits of the indictment and that therefore his plea in abatement came too late. This ruling of the court is insisted upon as being error, but under the statute (Code 1907, § 7573) and several decisions of this court and the Supreme Court it appears that the ruling was without error. Crawford v. State, 112 Ala. 1, 21 So. 214; May v. State, 115 Ala. 14, 22 So. 611; Rogers v. State, 166 Ala. 10, 52 So. 33; Wise v. State, 11 Ala.App. 72, 66 So. 128; 4 Mich.Ala.Dig. p. 113, sec. 176.

The motion to quash the venire was properly overruled. Acts 1909, § 29, p. 305; Clarence Reeves, alias Cecil Welton, v. State, 88 So. 197; Sallie Garner v. State (Sup.) 89 So. 69.

On cross-examination of the sheriff, George Mitchell, and the deputy sheriff, Dewey Mitchell, the court sustained the state's objections to numerous questions propounded by defendant's counsel to these witnesses, by which the defendant sought to show the whereabouts of one Aaron Black, the negro man who, it was proven without dispute, bought a pint of whisky from defendant in the presence of deceased and Deputy Sheriff Dewey Mitchell on the night of and just immediately before the killing of Anderson. In this there was no error. The person in question had not been ordered subpoenaed by either side as a witness in the case, and it does not appear how his whereabouts at the time of the trial could shed any light upon the issues involved.

If the purpose of this cross-examination was, as stated by the defendant's counsel, "I am asking that, to know where he is, in order to use him as a witness," this would not be sufficient to show the relevancy or even admissibility of such testimony, as no request was made by defendant that a subpoena be issued for this man as a witness before entering upon the trial or during the progress thereof. The well-recognized rule is that a wider latitude is allowable on cross-examination than upon the direct examination of a witness. This latitude is usually permissible for the purpose of testing the memory, sincerity, etc., of the witness, and while no universal rule can be laid down, it has been always held that this is a matter which necessarily must be left largely to the discretion of the trial court, and unless such discretion is abused the rulings of the trial court will not be revised on appeal. No such abuse is shown by the record here, and there was no error of a prejudicial nature committed by the court in this connection.

Other rulings of the court upon the testimony, to which exceptions were reserved, have been examined, and are free from error.

At the request of defendant, the charge of the court to the jury was made in writing. This charge has had our very careful consideration, and we are of the opinion that the criticism to the effect that portions of the charge were upon the effect of the evidence, and therefore error, is not well taken. Murray v. State, 13 Ala.App. 175, 69 So. 354. We are also of the opinion that the charge when taken and considered as a whole, and it must be thus considered, is free from error prejudicial to the substantial rights of the defendant. The court appears to have fairly stated the tendencies of the evidence on both sides, as well as the law applying to the theory relied upon both by the state and the defendant, and under this charge it was for the jury to say whether the version of the state or that of the defendant was correct. Blevine v. State, 204 Ala. 476, 85 So. 817.

In the refusal of several written charges requested by defendant, the court indorsed upon each of these charges the reason for its refusal. This is a wise and proper precaution, and tends to assist this court in passing upon questions of this character. Each charge refused to defendant was properly refused, and the reasons assigned by the trial judge for their refusal appear to be well stated. Charge 1 was elliptical and argumentative. Charge 5 does not state the law correctly, and the remaining refused charges are each clearly upon the effect of the evidence, as stated by the trial judge in passing upon them. Their refusal was without error.

Finding no error in the record, the judgment of conviction is affirmed.

Affirmed.

On Rehearing.

The several strong and vigorous briefs filed in support of the application for rehearing require us to make some answer thereto.

Counsel for appellant decline to insist upon a review of the opinion in so far as the plea in abatement and motion to quash the venire are concerned, and expressly decline to insist upon the right of the defendant to require the sheriff to designate the present whereabouts of Aaron Black, in...