Appellant was tried in the Circuit Court of Russell County under an indictment charging first degree murder. He was convicted of second degree murder and sentenced to 25 years in prison. From the judgment of conviction and the judgment overruling his motion for a new trial, he appeals.
The physical encounter between appellant and the deceased, in which the deceased sustained knife wounds which caused his death, took place in a drinking place in Phenix City. There were several eyewitnesses to the affair. The evidence as to the particulars of the difficulty is in dispute. Evidence for the state was to the effect that there was no argument between appellant and the deceased prior to the fatal encounter and that the attack made on the deceased by the appellant was unprovoked. The appellant adduced evidence to the effect that he had done nothing to provoke the difficulty and that he killed the deceased in self-defense.
The appellant took the stand to testify in his own behalf. On his cross-examination by the solicitor, the following transpired:
"(Exception by Mr. Smith.)
"The Court: I will overrule your objection.
"(Exception by Mr. Smith)"
The appellant contends that the allowance of this testimony was error as it was an attempt to prove the commission of the present offense by going into the particulars of another offense having no bearing on or relation to the instant case.
We are cognizant of the line of cases holding that in prosecution for a particular offense, evidence, as to the guilt of the accused of another distinct offense, unconnected with the one charged, is not admissible as substantive evidence to prove guilt of the offense charged. 6 Ala. Digest, Crim. Law. However, when
We think the matter complained of was properly allowed as an attack on the credibility of the witness for the purpose of impeaching his testimony. We are strengthened in our conclusion that no error prejudicial to appellant was committed by a portion of the oral charge to the jury wherein the lower court stated:
The appellant requested several written charges which were refused by the lower court. Charge 1 was a directed verdict for appellant. Charge 10 was in effect a directed verdict for appellant for first degree murder and charge 11 a directed verdict as to second degree murder. These charges were properly refused. The evidence was in conflict thereby causing a jury question as to the guilt or innocence of the appellant.
Charges 1-A and 6 are substantially the same charges. Both these charges were properly refused. While it is true that in Harris v. State, 96 Ala. 24, 11 So. 255 and Chaney v. State, 178 Ala. 44, 59 So. 604, charges substantially identical to these were held good, in those cases the evidence was without dispute that the defendant was free from fault in bringing on the difficulty and was under no duty to retreat. Such a factual situation does not exist here. For cases holding that such charges were properly refused, see Favors v. State, 32 Ala.App. 139, 22 So.2d 914 (Charge 23); Abercrombie v. State, 33 Ala.App. 581, 36 So.2d 111 (Charge 12); Brown v. State, 33 Ala.App. 97, 31 So.2d 670 (Charge 14).
Charge 4 was discussed at length in the case of Walker v. State, 220 Ala. 544, 126 So. 848, 852. It was there stated that "* * * this principle of law is applicable and to be given in charge * * * where the evidence is such, as a matter of law, the defendant is under no duty to retreat." The evidence in the instant case falls short of showing that appellant was under no duty to retreat and the charge was properly refused. Likewise, charge 7 was properly refused as it was not predicated on a belief by the jury that the appellant was free from fault in bringing on the difficulty and that the appellant was under no duty to retreat.
Charge 5 was fairly and adequately covered by the judge in his oral charge to the jury.
The matters we have treated above are the same as those which were assigned as grounds for the motion for a new trial. It follows that the action of the lower court
A careful consideration of the entire record fails to disclose the existence of any reversible error. The judgment is therefore affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.