After the overruling of his motion for a new trial, James E. Lewis appeals from a conviction for the second degree murder of James Albert Cole, for which he was sentenced in the Circuit Court of Conecuh County to a term of ten years in the State penitentiary.
The twenty-one year old appellant was on leave from the United States Army visiting at the home of his father, Alfred Lewis, in Range, Alabama, on Saturday, May 12, 1962. On that Saturday afternoon the now deceased, James Cole, drove up to the front of the Lewis home and persuaded the appellant to ride with him to Deer Range. The Lewis home was situated next to the last dwelling on a dirt road which ended at Cole's home where Cole apparently lived alone. Beyond the end of the road was a branch and beyond that, other homes.
The Lewis family had lived at this location from the time the appellant was a child but Cole, who was fifty-two years old, had moved into his home after appellant had joined the Army at the age of eighteen. It appears that appellant and the deceased were only casual acquaintances at the time of this incident.
Appellant got into Cole's 1955 Ford at about 8:00 P.M. His testimony at this point is as follows:
Appellant further testified that he did not remember going to Brewton or that a third person accompanied them. Jerome Sawyer testified that he saw appellant in Brewton that night with James Cole and another person and that appellant waved to him from the front seat of the 1955 Ford.
Appellant recalls awakening around midnight in Cole's house where the two were sitting at Cole's "eating table" on which was a bottle of moonshine whiskey. Appellant further testified that he had not drunk much moonshine whiskey prior to this incident and that:
Appellant testified that he put Cole's knife in his pocket and made no further effort to hit him and that they:
Additional questioning by his attorney brought out that the appellant remembered that Cole went back into the house to get a flashlight while appellant was under the car and that after getting under the steering wheel Cole had another drink, and that he still had Cole's knife in his pocket while Cole was sitting on the ground. They did not fight in the yard.
Appellant continued to testify:
Appellant testified that there was another wallet lying there but that he left it alone and then walked to his father's house by the shortest route, going down the road and through a field, which took about ten or fifteen minutes. When he got to his father's house, Lewis was still drunk and went into a room where he changed clothes. His father came in and he heard him say something about going to get some eggs.
The father, Alfred Lewis, testified that his son came home wearing civilian clothes at about 4:00 A.M. when he was feeding the hogs and that at about 6:00 A.M. he drove his truck to Cole's to get some eggs, which is where he normally bought his eggs. When he got there, he found Cole dead.
Sheriff Brock testified to details indicating that there had been a fight in the house and in the yard and signs of heavy drinking in the area. State Toxicologist Nelson Grubbs, who performed an autopsy on the deceased, testified that in his opinion Cole died from being strangled by fingers which crushed his voice box causing his lungs to fill up with blood. In addition to the evidence of strangulation, Grubbs testified that he found several abrasions on the body and that the nose and facial bones were crushed and that four ribs were fractured. He testified that it was impossible to determine the time of death.
William B. Thomas, criminal investigator for the Army at Fort Rucker, Alabama, testified as a witness for the State concerning a voluntary statement taken by him from the defendant on or about May 17, 1962, in the presence of Sheriff Brock as follows:
A question for determination by the trial jury was clearly presented by the evidence.
Accompanying the record in this case and bound with it is the transcript of an affidavit made by appellant's attorney and apparently filed in the court below in support of appellant's motion for a new trial. We quote from it because it clearly states an issue which appellant urges is cause for reversal of the judgment:
Appellant's counsel points out to this court that in Spivey v. State, 26 Ala. 90, this court clearly held that:
Clearly, this always has been and still is the law.
On the other hand, it is equally settled law in this State that the Court of Appeals is bound only by the transcript of the record before it, and upon it alone must base its decision. Ragsdale v. State, 134 Ala. 24, 32 So. 674. As pointed out above, this record cannot include the ex parte affidavit.
Looking then to the record for the error asserted by the appellant's attorney in his affidavit, we are unable to find it. What we do find, is Charge 9 in the words which the affidavit reports it was requested marked "Refused" and signed "A. H. Elliott, Judge", and this discussion following the judge's charge to the jury:
The record shows that the trial court refused thirteen of the twenty charges requested by the appellant. The record does not show that he called to the attention of the trial judge that one of the requested charges was read to the jury in a form other than requested and then marked "Refused". His statement to the trial judge could have referred to any of the charges which were refused. Had his statement been, "Your Honor, I think you misread my requested charge nine—", then he would have properly called any error to the attention of the judge who would have had an opportunity to correct it if he, in fact, did so err. As the record stands before us now, it reveals no error in this matter for the consideration of this court.
Charge nine was properly refused because it was misleading and stated an incorrect proposition of law. In Gosa v. State, 273 Ala. 346, 139 So.2d 321, a similar charge "was held bad because it permits drunkenness to reduce homicide to manslaughter in the second degree, whereas the correct rule in this jurisdiction is that drunkenness may reduce the degree of the homicide from murder to manslaughter but is no defense as to either degree of manslaughter." There also, in discussing a similar charge, Justice Coleman held, "The words `forming the purpose' are misleading."
Charge 3 was properly refused as an abstract statement.
Charges 1, 2, 11, 12, 13, D and E were the general affirmative charges and were properly refused by the court. The remaining Charges 8, 10, 14 and 15 were erroneous statements of the law and were properly refused on the same authority as
We find no error to warrant a reversal of this cause and the same is hereby