
    142 So. 659
    FERGUSON v. STATE.
    7 Div. 114.
    Supreme Court of Alabama.
    June 10, 1932.
    Thos. E. Knight, Jr., Atty. Gen., for the State.
   BROWN, J.

The appellant was convicted of murder in the first degree and sentenced to suffer death.

The deceased, Hensley Joshua Henderson, was a huckster engaged in peddling milk, butter, and vegetables, traveling a regular route.

The evidence is without dispute that the defendant and another lay in wait on the public highway for the purpose of robbing Henderson, the appellant being armed with a deadly weapon, and, if necessary to accomplish the robbery, to kill him. In carrying out this purpose, appellant shot and killed Henderson. The appellant not only made a confession to the sheriff and his deputies soon after his arrest, but testified fully on the trial, giving in detail the circumstances leading up to the killing, admitting the purpose and effort to rob, the commission of the robbery, and the intentional shooting of Henderson.

Mrs. Henderson, the wife of the deceased, testified as a witness in behalf of the state that the name of the deceased was Hensley Joshua Henderson; that he was commonly called “Josh”; that he was dead; that he died on the 30th day of June, 1931, about 6 o’clock in the evening. She was then asked by the solicitor: “How old was your husband?” The defendant objected to this question on the ground that it called for immaterial, illegal, and incompetent testimony. The objection was overruled and the defendant excepted. The witness answered: “Nearly 75.” The defendant moved to exclude the answer, and this motion was overruled. These rulings were free from error; the testimony went to the identity of the deceased. This is the only exception reserved on the record.

The jury, by their verdict, after hearing the evidence, fixed the degree of the crime at murder in the first degree, and the punishment at death. This was clearly justified by the evidence. Patterson v. State, 191 Ala. 16, 67 So. 997, Ann. Cas. 1916C, 968.

The judgment of conviction and sentence is affirmed.

Affirmed.

All the Justices concur, except KNIGHT, J., not sitting.  