1. Murder — Defendant as Witness — Compelling Him to Exhibit Wounds on His Person. — On a trial for murder to which there were no eye-witnesses, after defendant, as a witness in his own behalf, had testified that deceased had drawn and leveled a pistol upon him, which he knocked down, and the shot struck him in the left leg, making a wound, the scar of which he exhibited to the jury, he was asked, on cross-examination, if he had not shown said scar to certain parties before the killing, which he denied, saying that the scar he had shown them was on his right leg; whereupon the prosecution requested defendant to exhibit both legs to inspection by a physician, which request the court, on objection, refused, but stated that State's counsel would be permitted to request the defendant to exhibit his legs to the jury; and thereupon defendant submitted, under protest, to an examination by physicians, and they were permitted, over his objections, to testify in regard to the same. Held: 1. A defendant, as a witness, is bound to answer all legal questions, whether germain to the examination in chief or not. 2. The State had the right to make the request that he exhibit his right leg for inspection after he had exhibited his left leg, and having the right to make such request, there was nothing wrong in his subjecting his legs to examination by the physicians.
2. Same — Argument of Counsel. — On a trial for murder, where there was evidence showing that defendant killed deceased while he was asleep in bed, for purposes of robbery, Held, that it was not error for the district attorney to state, in his argument to the jury: "The defendant murdered F. while he was asleep in bed, and after brutally killing him with an axe, the defendant robbed him of his money, his clothes, his horse and buggy, and he should suffer the death penalty for his crime."
3. Same. — Where defendant, as a witness, had stated that deceased had shot him, and the prosecuting attorney in his closing argument stated that the deputy sheriff who had brought defendant to jail, and the jailer who had been with and around defendant, had never seen any holes in his clothing caused by deceased's pistol, and that it was not true that he had been shot, and that defendant had not called said officers as witnesses, because they would not swear to such fact, Held, the remarks were proper and the conclusions legitimate.
4. Murder — Evidence — Inculpatory Facts. — On a trial for murder, where there were no eye-witnesses, it was clearly admissible to prove blood-spots were seen upon the floor of the house in which defendant had been living prior to the killing, and that there was also found in said house a pair of pants, upon which, and the suspenders attached to them, there were found spots supposed to be blood and brains.
5. Same — Charge — Lesser Degrees. — Where the evidence established a deliberate murder or nothing, it is not error to refuse instructions upon lesser degrees of homicide.
6. Witness — Rule. — Where the rule has been invoked as to the witnesses, Held, not an abuse of discretion on the part of the court to permit a witness who was not put under the rule, and was in the court room and heard the testimony of the other witnesses, to testify that he had examined the pants of defendant just after his arrest, and that he saw no bullet hole in the leg of said pants.
7. Evidence as to Character of Defendant. — On a trial for murder, the defendant, who had resided in Texas but two years, put his character in evidence: Held, that it was admissible for the State to prove, by witnesses who knew him in Alabama up to three years ago, that his real name was Henry Whitehead, and that his reputation as a peaceable and law-abiding citizen in Alabama was not good.
8. Argument of Counsel — Belief of Defendant's Guilt. —
9. Murder — Evidence Sufficient. — See facts stated which are, though the evidence is circumstantial, Held, amply sufficient to support a verdict and judgment of conviction for murder in the first degree, with the death penalty.
HURT, PRESIDING JUDGE.
Appellant was charged by indictment with the murder of J.M. Farley. The trial resulted in a conviction for murder in the first degree, with the death penalty assessed. Judgment accordingly, from which appellant prosecutes this appeal.
If the State's theory of the case be true, appellant is guilty of a deliberate murder for the purpose of acquiring possession of and converting to his own use the property of deceased, and perhaps robbery. If that of defendant be true, the homicide was in self-defense. There is no murder in the second degree in this case. The theory of the State is supported by a chain of circumstances leading with almost absolute certainty to the conclusion of guilt.
The defendant was a witness in the case, and his defense depends almost entirely upon his own evidence, which is only very slightly supported by any other.
Defendant's version of the facts attending the homicide, condensed, is as follows: "I knew J.M. Farley. He came to my house on the 6th of November, 1893, and picked cotton for me. Farley is now dead. I killed him. That night I bought his horse and buggy and gun and saddle for $55, and I paid him. We then got into a game of cards, poker. He and I were alone in the house. My wife was over at Rachall's, staying there that night. I had won nearly all of Farley's money that I had given him for his things. On the last hand he put up all the money he had left, about $8 or $10. When I called he showed his hand, and he had six cards and a winning hand. I then put my hand on the money and told him he could not take the money; that he was cheating and had too many cards. Farley then jerked out a pistol and threw it down on me, in my face. I grabbed at the pistol and knocked it down, and he shot me in the left leg. The pistol fell on the floor. I had just about gotten up out of my seat when I knocked the pistol out of his hand. Just about this time Farley jumped and grabbed his double-barrel shotgun, which was loaded, and as he was stooping down to pick it up I snatched a piece of cottonwood rail and struck him twice on the head, and killed him." While on the stand, in corroboration of his testimony, he exhibited his left leg to the court and jury, which contained a scar about four inches above the knee, and about two and one-half inches apart; the bullet appeared to have gone at an angle of about thirty degrees.
On cross-examination, defendant was asked if he had not exhibited that scar to certain parties before the killing. He said no, but that he had shown them a scar on the right leg. The State requested the defendant to submit the wounds on both the right and left legs to an examination by a physician. Counsel for defendant objected, and the jury were retired. After hearing the objections of counsel for defendant, the court sustained the same, but stated to the counsel that he would permit State's counsel, in the presence of the jury, to ask defendant to exhibit his leg, and if he refused to do so that his refusal would be permitted to go the jury in connection with his other testimony; and thereupon defendant, under protest, permitted an inspection and examination by physicians, and the physicians were permitted, over objection of defendant, to testify in regard to the same.
A defendant voluntarily assuming the position of a witness is bound to answer all legal questions, whether germain to the examination in chief or not. Had the State the right to ask him to exhibit the wound on his right leg? Had the defendant, in corroboration of his statement, the right to exhibit the wound on his left leg? We think he had. If so, we think the State had the right to make its request. If the State had no right to make such a request, the fact that the defendant refused to comply could not be used against him. Having the right to make such request, there was nothing wrong in defendant's subjecting his legs to an examination of the physicians.
Bill of exceptions number 3. There was a great deal of proof that defendant killed deceased while he was in bed asleep, and that it was for the purpose of robbery. The remarks of the district attorney were not improper. These were his conclusions from the facts, which were very well sustained by the circumstances.
Bill of exceptions number 4. The remarks of the district attorney were proper, and his conclusions were logical.
Bill of exception number 5. The facts proven, complained of in this bill, were of the first importance under the circumstances of this case.
Bill of exceptions number 6. As above stated, there was no murder in the second degree in this case; neither was there manslaughter. It was a cool, deliberate murder, or nothing.
Bill of exceptions number 7. The witness Anderson had not been placed under the rule. Notwithstanding this, the court permitted the State to prove by him that he examined the pants of defendant at Kerens just after his arrest, and that he saw no hole in the leg of his pants caused by a pistol shot. There was no abuse of discretion by the court in regard to this matter.
Bill of exceptions number 8. Defendant had been in Texas but two years. He put his character in evidence. The State, over objections of the defendant, proved by James Bryant, that up to about three years ago, in Alabama, he had known the defendant; that he knew his general reputation as a peaceable and law-abiding citizen in Alabama up to about three years ago, and that his reputation was not good. In this there was no error.
Bill of exceptions number 9. We can not reverse a judgment because a prosecuting attorney states to the jury that he believes the defendant guilty and ought to be hanged, though this be improper. There is cogent testimony in the record that deceased was asleep when killed, and that the murder was for the purpose of at least obtaining his property.
The evidence supports the verdict. If the guilt of a party can be established by circumstantial evidence, then this appellant is guilty of a cold, deliberate, premeditated murder for the purpose of obtaining the property of deceased, and in the perpetration of robbery.
The defense is a sham — an afterthought — shown to be such by the acts and declarations of the appellant and all the attending circumstances.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.