Carter v. State

Decided April 7, 1921

Supreme Court of Alabama · decided 1921-04-07

.1. Homicide <&wkey;>203(3) — Dying declaration, after deceased informed by doctor no chance for him to live, supported by proper predicate. In a prosecution for murder, a dying declaration of deceased, after he had stated he was going to die and the doctor told him there was not a chance for him to live, was admissible. 2. Criminal law <§^696(7) — Motion to exclude testimony as to dying declaration properly overruled, if any part of answer outside proper scope of dying declaration. In a prosecution for murder, a motion to exclude a dying declaration of deceased, being addressed to the answer of the witness as a whole, if any part of the answer was outside the proper scope of a dying declaration, was properly overruled. 3. Witnesses &wkey;>240(2) — Court’s permission of leading question not revisable. It is within the discretion of the court to permit a leading question, and such rulings are not revisable. 4. Criminal law <&wkey; 1043(1) — Assignment of specific ground of objection waives other grounds. The assignment of a specific ground of objection to a question constitutes a waiver of all other grounds. 5. Homicide &wkey;>l56(l) — Statement of accused to deceased after shooting hold admissible to show hostility before shooting. In a prosecution for murder, evidence that defendant said to deceased, about five minutes after he was shot, while he was lying on the ground, “You d-d fool; stand up” — was properly received, as evincing hostility to deceased antedating the shooting. 6. Criminal law <&wkey;412(3) — Statement of defendant to physician after killing held competent, being incriminatory and not illegal per se. In a prosecution for murder, a statement by defendant to a physician two or three hours after the killing that “you don’t know a thing about it” was competent and relevant, being incriminatory and not illegal per se. 7. Criminal law <&wkey;4(2(l)— Statement of accused, if incriminatory, need not be of res gfestse. In a prosecution for murder, a statement of defendant need not be of the res gestee, if incriminatory. 8. Witnesses <&wkey;40(2)— Competency of eight year old girl as witness for trial court. In a prosecution for murder, the competency of an eight year old girl as a witness was for the trial court, and the appellate court cannot say that error was committed in allowing her testimony to go to the jury. 9. Homicide <S&wkey;>I 66(1) — Testimony of eight year old daughter of deceased as to defendant’s visits to their house admissible to show motive. In a prosecution for murder, testimony of deceased’s eight year old girl that defendant frequently came to their house when her father was away was admissible to show a motive on the part of defendant, and as an introduction to the child’s testimony as to a threat made by defendant against deceased on such a visit. 10. Homicide <&wkey;294(2) — Instruction to find not guilty if accused too drunk to form intent to take life properly refused, in view of defendant’s testimony. In a prosecution for murder, an instruction that if the jury had a reasonable doubt as to whether defendant was sufficiently sober to form a specific intent to take life it could not find him guilty was properly refused; defendant’s own testimony being sufficient to exclude the idea, and he having the full benefit of it in the court’s oral instructions to the jury. 11. Homicide <&wkey;307(4) — Instructions to find not guilty if no intent to kill, erroneous, as excluding conviction of manslaughter in second degree. In a prosecution for murder, instructions that unless the jury believed beyond a reasonable doubt that the defendant fired the shot intentionally that killed deceased he was not guilty were properly refused, as calling for an acquittal of any offense, whereas defendant might have been convicted of manslaughter in the second degree, though he did fire without intent to kill. 12. Criminal law <&wkey;829(I) — Instructions properly overruled, where fully covered by instruction given. In a prosecution for murder, instructions that the carrying of a pistol on the occasion of the shooting by defendant was not a proximate cause of the killing, if proper, were not prejudicial, being fully covered by an instruction given. dfejEor other cases see same tonic and KEY-NUMBEB in all Key-Numbered Digests and Indexes 13. Criminal law &wkey;307(4} — Instruction defendant not guilty, though he aimed pistol at deceased, if he had no intent to shoot, properly refused, as excluding conviction for manslaughter. In a prosecution for murder, an instruction to find defendant not guilty, though he aimed his weapon, if he had no intention to shoot, was properly overruled, as he might have been guilty of manslaughter in so doing, Code 1907,, § 6S93, making it a criminal offense to present any firearm at another. 14. Homicide &wkey;307(2) — Not error to refuse charges as to degrees of homicide, as jury might convict of any degree. In a prosecution for murder, there was no error in refusing charges as to the several degrees of unlawful homicide; it being open to the jury to convict of any degree. <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Key passage — most relied on by later courts

“[T]he assignment of a specific ground of objection to the question constituted a waiver of all other grounds.”

quoted by 1 later decision, including 474 So. 2d 182 - Cooper v. State

Relies on Floyd v. State · Sims v. State · Wade v. State

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1921-04-07

How this case has been cited

Cited by 36 later decisions — most recently May 1988 · most notably Higginbotham v. State (1955), 33 Ala. App. 269 - Bankhead v. State (1947)

36 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 →

SAYRE, J.

¶1 Indictment for murder; conviction of murder in the second degree.

¶2 [1, 2] The question calling for the dying declaration of deceased was supported 'by a proper predicate. Gerald v. State, 128 Ala. 6, 29 South. 614; Sims v. State, 139 Ala. 74, 30 South. 138, 101 Am. St. Rep. 17; McEwen v. State, 152 Ala. 38, 44 South. 619. If any part of the answer was outside the proper scope of a dying declaration, the motion to exclude was addressed to- it as a whole, and hence was properly overruled. Autrey v. State, 190 Ala. 10, 67 South. 237.

¶3 [3-5] The only ground of objection taken against the state’s question to the witness Jarrett was that it was - leading. It was within the discretion of the court to permit a leading question. Such rulings are not revisable. Brassell v. State, 91 Ala. 45, 8 South. 679. And the assignment of a specific ground of objection to the question constituted a waiver of all other grounds. Floyd v. State, 82 Ala. 16, 2 South. 683. But additional grounds of objection were urged in the motion to exclude, and these, it seems, should be considered on their merits. The answer of the witness showed that about five minutes after defendant shot deceased, defendant said to deceased, who was lying on the ground and had said that he could not get up: “You d-d fool; stand up.” This evidence as to the statement of defendant, addressed to deceased in person and so soon after defendant had inflicted a mortal wound upon him, was properly received, since the jury may have construed it as evincing a state of hostility to deceased antedating the shooting. Smith v. State, 183, Ala. 10, 25, 62 South. 864.

¶4 [6, 7] The statement made by defendant to the witness Dock Allen, as detailed by the witness, was competent and relevant. It was an incriminatory statement, not illegal per se nor was any objection interposed to the question by which the answer was elicited. It appeared that defendant’s real objection to this answer was that defendant’s statement, shown thereby, was not of ,the res gestas of the homicide; but, being incriminatory in nature, no rule of evidence required that it should be of the res gestse.

¶5 [3] The question as to the competency of the witness Louise Roberts, an infant child of deceased, was for the trial court in the first instance. That court had a better opportunity to form a proper judgment than we can have on appeal, and we are not at all clear to the conclusion that the court in this case committed error when it allowed the testimony of the child to go to the jury. Wade v. State, 50 Ala. 164; Grimes v. State, 105 Ala. 86, 17 South. 184.

¶6 [9] There was no error in the ruling by which the court allowed this witness to testify that defendant frequently came to their bouse when the witness’ father was away. This and other evidence tended to show a motive on the part of defendant. Furthermore, it served as an introduction, proper in part at least, to the testimony of the child, tending to show a threat made by defendant against deceased on- the occasion of such a visit.

¶7 [10] The evidence of the defendant, testifying as a witness in his own behalf, was amply sufficient to exclude the idea that he desired to have the jury draw an inference that he was so drunk on the occasion of the killing as to be unable to form' a specific intent to take life, and hence charge 4 was correctly refused to him. We think, moreover, that, even if there were any room for the proposition of his charge, defendant had the full benefit of it in the court’s oral instruction to the jury.

¶8 [11] Charges 5 and 6 were well refused to defendant, for, on the hypothesis of these charges, defendant might have been convicted of manslaughter in the second degree, whereas, on the fact hypothesized, these charges 'required an acquittal of any offense. And so charges 11 and 15 were properly refused for the reason that the defendant might have been convicted of manslaughter in the second degree, even though the killing was not intentionally done.

¶9 [12,13] Charges 13, 14, and 17, even though it be conceded that they might have been proper in any event, were fully covered by given charge 16. And charge 18 was bad for the reason that defendant might have been guilty of manslaughter if, as the evidence tended to show, he aimed his weapon at deceased, even though having no intention to shoot him. The statute, section 6S93 of *463 the Code, makes it a criminal offense to present any firearm at another.

¶10 Charges 19, 20, 23, 27, and 30 were properly refused on grounds already indicated. They were, moreover, calculated to mislead the jury.

¶11 [14] It is clear that there was no error in refusing the several affirmative charges as to the several degrees of unlawful homicide. It was open to the jury, under the evidence, to.convict defendant of any degree.

¶12 Affirmed.

ANDERSON, C. J., and GARDNER and HILLER, JJ., concur.