Talley v. State

• Decision Date: 18 January 1912
• Citation: 174 Ala. 101,57 So. 445
• Parties: TALLEY v. STATE.
• Court: Alabama Supreme Court

57 So. 445

174 Ala. 101

TALLEY v. STATE.

Supreme Court of Alabama

January 18, 1912

Appeal from Criminal Court, Jefferson County; M. Frank Cahalan Judge.

Son Talley, alias Paul Talley, was convicted of murder in the first degree, and appeals. Affirmed.

The exceptions to evidence sufficiently appear in the opinion. The following charges were refused to the defendant: (1) "I charge you that you cannot convict the defendant in this cause, if you believe Armstead Lawler came to his death as a result of a wound inflicted by Clanny Bird." (2) "I charge you that if, from the evidence in this case you believe beyond a reasonable doubt that there is a probability that Clanny Bird inflicted the wound upon Armstead Lawler that caused his death, and you further believe from the evidence that there was no conspiracy between Clanny Bird and the defendant, you cannot convict the defendant for the murder of Clanny Bird." (3) "I charge you that you cannot find from the evidence in this case that Armstead Lawler came to his death as a result of a wound inflicted by the defendant in this case." (4) "I charge you that, unless you are convinced from the evidence in this case that the wound in the back of deceased was made by the defendant, and that it was one of the causes of his death, then you cannot convict the defendant." (5) "I charge you that if you believe from the evidence that Clanny Bird engaged in the difficulty with Armstead Lawler, and she was seen by this defendant while engaged in said difficulty, and this defendant on the impulse of the moment struck deceased the blow in the back in an effort to save Clanny Bird from an attack which was likely to result in her death or serious bodily harm, you cannot convict the defendant of murder in the first degree." (6) "I charge you that you will consider the evidence introduced in this cause by showing the same as though the witness were present in court, and that you cannot disregard such testimony without the same has been impeached in some manner recognized by law."

Black &amp Davis, for appellant.

R. C Brickell, Atty. Gen., and T. H. Seay, Asst. Atty. Gen., for the State.

SOMERVILLE J.

The defendant was convicted of murder in the first degree, and sentenced to life imprisonment.

Twelve of the jurymen whose names were on the special venire were engaged in the trial of another cause when the jury was selected for the trial of defendant. Defendant objected to being required to strike without these 12 names being placed on the list. This objection was properly overruled. See Trammell v. State, 1 Ala. App. 83, 55 So. 431; Patterson v. State, 54 So. 696.

Defendant testified in his own behalf, and on cross-examination the solicitor was allowed to ask him, "Why did you go to Lovett?" and, "How came you to get out of the way?" The witness' motive in doing these things was relevant to the issue, and could be properly elicited by a direct question on cross-examination. Linnehan v. State, 120 Ala. 293, 25 So. 6. Moreover, his answers were exculpatory and distinctly beneficial to himself. There was no error in overruling the objections to the questions or the motions to exclude the answers.

Before the jury retired, defendant requested that the jury be allowed to take out with them the written showing admitted as the testimony of his witness, Helen Davis, and excepted to the court's refusal to allow it. This action was within the discretion of the trial court. Smith v. State, 142 Ala. 14, 27, 39 So. 329; Koosa v. Warten, 158 Ala. 496, 48 So. 544.

The court refused to give six of the charges requested in writing by the defendant. The first charge was bad for two reasons (1) Although the wound inflicted by defendant did not cause the death of the deceased, defendant might still have been convicted of a felonious assault; and (2) if the wound...