Stit v. State

• Decision Date: 20 December 1890
• Parties: STIT v. STATE.
• Court: Alabama Supreme Court

8 So. 669

91 Ala. 10

STIT v. STATE.

Supreme Court of Alabama

December 20, 1890

Appeal from circuit court, Talladega county; LEROY F. BOX, Judge.

The appellant in this case was indicted, tried, and convicted of manslaughter in the first degree. On the trial, as shown by the bill of exceptions, the evidence tended to show that the defendant and the deceased were very friendly up to the day of the killing; that they had lived together, and slept together for over a year; that on the day of the killing the defendant came up to where the deceased was working at a furnace, (they both worked at the same furnace), and said to him "Why did you tell that tale on me, Rich?" and that this brought on some words on the part of both of them that in about five minutes afterwards the defendant repeated the question, whereupon the deceased advanced upon the defendant, knocked him down, and beat him in the face; that they were separated; and that the defendant ran around the furnace, and returned in about two to five minutes with a pistol in his hands, and after his return the altercation which resulted in the killing, took place.

W L. Martin, Atty Gen., for the State.

MCCLELLAN J.

It appears from the bill of exceptions that the "defendant objected to all questions asked witness about the first difficulty, and the court overruled his objections, to which the defendant duly excepted." Whether the "first" difficulty thus referred to was not in point of fact only a part of one continuous transaction is not very clear from the record, but upon the whole testimony we are inclined to the conclusion that all that occurred between the parties leading up to and culminating in the killing was within the res gestæ of the act charged and therefore properly allowed to go to the jury. Smith v. State, 88 Ala. 73, 7 South, Rep. 52; Martin v. State, 89 Ala. 115, ante, 23. The concession, however, that such was not the case, that the first difficulty was not a part of the res gestæ of the homicide, will not avail the appellant. It was clearly competent for the state to prove a former difficulty, and any threats made in connection therewith, though not the particulars of it. Lawrence v. State, 84 Ala. 424, 5 South. Rep. 33; Ross v. State, 62 Ala. 224. What the witness said "about this first difficulty" embraced not only the fact of such difficulty, but threats therein made by the defendant against the deceased. The objection went to the whole evidence, and, if allowed, would have excluded this clearly competent testimony as well as that which gave the particulars of the former difficulty. Under our uniform rulings it was properly overruled on this ground, if not on the first consideration adverted to. Lawrence v. State, supra; Lowe v. State, 88 Ala. 8, 7 South. Rep. 97; Badders v. Davis, 88 Ala. 367, 6 South. Rep. 834; Coleman v. State, 87 Ala. 14, 6 South. Rep. 290; Marks v. State, 87 Ala. 99, 6 South. Rep. 377.

The only other exception reserved is thus presented by the bill of exceptions: "The defendant asked that the following special charges in writing be given to the jury. The court refused the same, to which refusal the defendant duly excepted." This is manifestly the reservation of but one general exception to the refusal of the court to give several charges,-five in number,-and will not avail the appellant unless each one of the instructions so...