156 Ala. 3

Hill v. State

Decided June 3, 1908

Supreme Court of Alabama · decided 1908-06-03

Murder. 1. Evidence; Self Serving Declarations; Homicide. — A defendant may not show self sexwing declarations made by him after the commission of the offense, and hence,- the court properly excluded a question to the sheriff as to what, if anything, the defendant said, in the house when he visited him. 2. Witnesses; Examination; Repetition. — It is not error to permit a .witness to be asked what it was that defendant said, although on redirect examination such witness had stated what defendant had said in the natui'e of a confession about the killing, although it was repetitious. 3. Homicide; Evidence; Admissibility. — Where the evidence tended to show that the defendant, in answer to a knock at the door, opened the door, and, receiving no answer to his question of who is there, shot the person, the defendant may not testify that there had been considerable complaint of housebreaking or burglary in the neighborhood about the time of and just before the shooting; it not being shown that such rumor had any effect in producing the crime or that the shooting was done while deceased was engaged in an unlawful act. 4. Witnesses; Examination; Leading Questions.~A question,“Were you and Berry Mitchell on friendly terms?” is objectionable as leading. 5. Homicide; Motive; Evidence. — The evidence tending to show that the shooting occurred after a knock on the door and the opening of the door by defendant, and his failure to get any response-to his inquiry, it was competent to ask him on the cross what he had the gun for, as his motive under the circumstances was material. 6. Trial; Evidence; Erroneous Admission; Cure. — Where evidence-is erroneously admitted, the error is cured by subsequently excluding the evidence. 7. Same; Argument of Counsel. — In the absence of evidence showing an attempt at flight by the defendant, it was error to permit the prosecuting attorney to say in his argument to the jury that defendant was guarded in his house by the neighbors after the shooting until the sheriff could arrive. S. Homicide; Instructions; Sufficiency. — A charge asserting that deféndant’s house was his castle and stating his right to defend it against attack, etc., but which does not state the defendant’s belief in the facts hypothesized therein, is properly refused. 9. Charge of Court; Confusing Instructions. — A charge asserting that if the evidenec is evenly balanced the jury should lean to the side of mercy and decide in favor of the defendant, is properly refused as confusing. 10-. Same; Argumentative Instructions. — A charge asserting that if a reasonable doubt exists or grows out of the evidence or any conflicting statement made by the witnesses, if any in fact, is made, which cannot be reconciled so as to make all the witnesses speak the truth under all the facts proven in the case, the jury must acquit the defendant, is not only argumentatve but misleading. 11. Same. — A charge asserting that the jury might take into consideration the fact, if it be a fact, in determining whether or not the defendant intended to have escaped, that the defendant could have escaped before the crowd congregated at his house, is properly refused as misleading. 12. Same. — A charge asserting that the jury might take into consideration the fact, if it be a fact, that the defendant could have escaped before the crowd congregated at defendant’s house, in determining from all the evidence whether or not defendant intended to escape, is argumentative and its refusal proper. IS. Same. — A charge asserting that if the jury believe from all the evidence that defendant was excited or scared, they might look to that evidence, together with all the other evidence in the case, in determining whether or not the shooting was excusable or justifiable, is properly refused as argumentative. 14. Same. — A charge asserting that the state had offered no evidence showing that defendant’s house was guarded so as to prevent his flight, and that the argument of counsel to that effect was improper and must not be considered, was properly refused as argumentative. 15.. Same. — A charge asserting that- there was no evidence that' the •defendant was convicted for cutting up a man some eighteen or twenty years ago, and any statement of counsel to that effect whs-unWar-" ,ranted by the evidence-and' should not be considered-in determining: •• whether or not the defendant is guilty, is properly refused as 'argumentative. ' ' •" ■ ' r- ; ’ 16. Homicide; Self-Hefensc; Oonfnsúig Instructions. — An instruction - asserting that by overt acts is meant any action or demonstration, of deceased that was sufficient to create in the mind of a reasonable man under the same circumstances, or like circumstances, that- the defendant, was actually in danger of real or apparent danger either to life or limb, or great bodily harm, and it is the same in law-even if no real-danger in fact existed, is involved and confusing, and its refusal proper.

Relies on Pate v. State · Roberts v. State · Ross v. State

Good law ✅— No negative treatment on recordhow we know

Reversed and remanded · Decided 1908-06-03

How this case has been cited

Cited by 26 later decisions — most recently June 1984 · most notably Pollard v. Rogers (1937), B'ham Ry. L. & P. Co. v. Barrett (1912)

26 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

HARALSON, J.

¶1The indictment- against- defendant Avas for manslaughter in the first degree, for the killing of the Mitchell; and he was accordingly convicted and sentenced.

¶2The salient facts of the shooting, as .given by Charlie Hill, aaTlo Avas present, and by defendant, himself, were; that some one beat upon the door of his house, and de< fendant said, “What is that?” two or three times, and no-one answered; that defendant got his gun, opened the door and asked “who it was,” and no one answering, he shot deceased.

¶3The defense was sought to be rested on the grounds, that defendant had a right to defend his house against unlawful invasion; that burglaries were being committed in the neighborhood, and being scared, he shot to protect himself against a supposed burglar. The sheriff, Wiggins, it appears, went to the house after the killing.

¶4On the examination of C. Cook by the state, the defendant asked him “what, if anything, the defendant said in the house.” The court sustained an objection interposed 'by the state to the question. The proposed evidence was not a part of the res gestae of the offense. It appears to call for a selfserving declaration of the defendant, made after the killing, and was properly disallowed. — Roberts v. State, 68 Ala. 515. Moreover, the proposed answer was not shown, and the court could not, therefore, pass intelligently on the question. — Ross v. State, 139 Ala. 144, 36 South. 718.

¶5On redirect examination of this Avitness, who had stated what the defendant had said, in the nature of a confession, about the killing, the solicitor asked, “What was it the defendant said?”

¶6There was no error here. It called for a repetition of the evidence as given by the witness, admitted properly without objection, and was in the interest of greater certainty, as to what defendant had said. ,

¶7 *9.The witness,- Wiggins, .examined by defendant^ was asked by him, “If there had not been considerable complaint of housebreaking, or- burglarizing about the time and just before the. shooting.of deceased, in the neighborhood in -which the defendant lived?” The state A objection was properly sustained by the court. It was not shown that such rumor had- any effect in producing this crime, nor was it committed while deceased was engaged in any unlawful act.- — Walker v. State, 139 Ala. 57, 66, 35 South. 1011.

¶8The court cannot be put in error for- sustaining the objection to the question asked the defendant, “Were yon and Berry Mitchell on friendly terms?” as it is of a leading character. ,

¶9On cross-examination of defendant, examined as a witness for himself, he was asked, “What did you have the gun for?” It was legitimate to make this inquiry on the cross. His motive was, under the facts, proper to be inquired of, from him. — Williams v. State, 123 Ala 39, 26 South. 521.

¶10The defendant was asked on the cross, “You were sent to the coal mine for cutting a man up, were you not?” An objection to the question was overruled. If there was error in this ruling it was error without injury, as the court subsequently ruled out the evidence given in answer to the question.

¶11There was error in the refusal of the court to exclude the argument of the solicitor from the jury. It involved the statement of a fact of which there was no evidence; and in the absence of evidence of attempted flight on the part of the defendant, such evidence, if it had been offered, would not have been competent.

¶12Charge 10, requested by defendant, was. properly refused, if for no other reason, because it failed to state defendant’s belief in the facts hypothesized. — Harrison *10v. State, 144 Ala. 21, 40 South. 568; Mitchell v. State, 133 Ala. 66, 32 South. 132.

¶13Charge 13 was properly refused. — Hughes v. State, 117 Ala. 26, 23 South. 677; Pate v. State, 94 Ala. 14, 10 South. 665.

¶14Charge 16 is argumentative and misleading, and was properly refused. — Liner v. State, 124 Ala. 2, 27 South. 438.

¶15Charges 17, 18, and 21 were properly refused.

¶16Charges 19, 20, and 22 were mere arguments, and were properly refused.— Austin v. State, 145 Ala. 40, 40 South. 989.

¶17Charge 23 was properly refused. It is involved and confusing.

¶18Reversed and remanded.

Tyson C. J., and Simpson and Denson, JJ., concur.