
    Thomas v. The State.
    
      Indictment for Murder.
    
    1. ~Rew trial in criminal case; ruling on motion not reviewed on appeal. — The ruling of a trial court on a motion for a new trial in a criminal case is not revisable on appeal.
    2. Evidence; %ohen general objection properly overruled. — A general objection to a question asked a witness, which is not made until after the question has been answered, is properly-overruled.
    3. Same; non-expert witness. — On a trial under an indictment for murder, a witness, though not a physician, is competent to testify that he was present when the deceased died under an operation performed on him, by reason of a wound inflicted by the defendant.
    4. Indictment for murder; charge of court as to manslaughter. On a trial under indictment for murder, where after the court in its oral charge to the jury has instructed them as to what constitutes murder in the first and second degree, the follow-further instruction by the court is free from error: “Manslaughter in the first degree is also embraced in this indictment. Manslaughter in the first degree is the unlawful killing of a human being without malice, that is as the unpremeditated result of passion heated blood caused by a sudden sufficient provocation. Now, if the defendant unlawfully, but without malice killed John Leonard by shooting him with a pistol and such killing was the result of passion heated blood suddenly aroused without sufficient provocation solely, then that would be manslaughter in the first degree.”
    4. Same; when not erroneous for court to fail to instruct as to manslaughter in the second degree. — On a trial under an indictment for murder, where there is an entire absence of evidence tending to show that the crime committed was manslaughter in the second degree, and all the evidence, without conflict or dispute, shows that the killing of the defendant was intentional, it is no objection to the general oral charge of the court to the jury, that it fails to instruct them as to manslaughter in the second degree, and it is not error for the court, in such case, in its general oral charge, to instruct the jury that if the defendant is guilty at all under the evidence in the case, he is guilty of either murder in the first degree, murder in the second degree or manslaughter in the first degree.
    5. Homicide; improper treatment' of dangerous wound affords no protection to defendant. — Where a wound upon a deceased is in itself dangerous to life, mere erroneous treatment of it, or of the deceased himself suffering from it, will afford no protection or defense to defendant against a charge of unlawful homicide.
    6. Argumentative and confused charges are properly refused.
    7. Indictment for murder; charges as to manslaughter and murder. On a trial under indictment for murder, where there was evidence introduced from which the jury might have found the defendant guilty of murder, charges are erroneous and properly refused, which instruct the jury that if they believe the evidence beyond a reasonable doubt they will find the defendant guilty of manslaughter, or that they will acquit the defendant of murder in the first degree and murder in the second degree.
    8. Trial and its incidents; charges as to defendant not testifying as a witness. — Under the statute, no adverse inference or presumption can be drawn from the failure of the defendant in a criminal case to testify as a witness in his own behalf, (Code, § 5297); and, therefore, in a trial of a criminal case, a charge requested by the defendant should be given, which instructs the jury that “No inference or conclusion should be drawn by the jury from the fact that the defendant was not sworn and put on the stand as a witness in his own behalf nor should this fact have any weight with the jury in reaching a verdict.”
    Appeal from tlie City Court of Talladega.
    Tried before the Hon (t. K. Miller.
    Tbe appellant Avas indicted, and tried for the murder of John Leonard, Avas convicted of murder in the first degree and sentenced to the penitentiary for life.
    
      On tbe trial of tbe case, tbe evidence for tbe State tended to show that tbe defendant and deceased Avere riding together in a buggy, and that upon approaching some other men in tbe road they stopped; that tbe deceased Avas drunk and Avas proceeding to give the men Avhom they met, a drink; that tbe defendant told him to keep quiet, whereupon tbe deceased bit tbe defendant Avith bis band; that the defendant then got out of tbe buggy and told the deceased to get out; that upon deceased refusing to do so, tbe defendant drew bis pistol and pointing it at tbe deceased, again ordered him to get out of tbe buggy; and that while tbe deceased Avas getting out of tbe buggy tbe defendant shot him. It Avas shown that tbe deceased was carried to a hospital in Birmingham, and that Avhile be Avas being operated upon on account of tbe Avound inflicted by tbe defendant, be died.
    There were four physicians examined, each of whom testified that they bad examined the Avound inflicted upon tbe deceased, and that it was dangerous wound; three of tbe physicians testifying that death would have resulted without an operation.
    During tbe examination of Sanders Turner, and after be bad testified that be was present at the time tbe deceased was shot and bad stated tbe circumstances of tbe shooting, be was asked by tbe solicitor for the State, if be saw tbe defendant and bad any conversation Avith him at any time after the shooting and Avas requested to state Avhat be did and Avhat be said. The witness in ansAver to this question testified that lie suav tbe defendant tbe next morning after tbe shooting; that tbe defendant asked him if be, the witness, bad said anything about tbe shooting, and stated that the deceased did not knoAV Avho shot him, and then said that if be, tbe defendant, beard, anything about it, “he was going to leave.” Tbe bill of exceptions then contains the folloAving recital : “To tbe question eliciting this conversation and to tbe answers thereto, defendant objected, tbe court OA'erruled the objection, and tbe defendant excepted.”
    Yassar L. Allen, a witness for tbe State, testified that lie was an attorney-at-law and lived in Birmingham; that he was at the hospital in the city of Birmingham at the time the deceased was operated upon and was present at the operation. This witness then testified that the deceased died on the operating table in less than five minutes after the surgeon’s knife was applied to the swelling near his collar bone, which was the result of the wound, and which the physicians termed an aneurism or blood tumor. The defendant objected to the testimony of the Avitness as to the deceased having died on the operating table, because the witness Avas not a physician, and moved to exclude the same from the jury. The court overruled the objection and motion and the defendant duly excepted. The defendant was not SAVorn .as a Avitness, and did not testify in his oavu behalf.
    In the court’s general oral charge to the jury, after defining murder in the first and second degree, the court then instructed the jury as follows: “Manslaughter in the first degree is also embraced in this indictment. Manslaughter in the first degree is the unlawful killing of a human being Avithout malice, that is as the unpremeditated result of passion heated blood caused by a sudden sufficient provocation. Noav, if the defendant unlawfully, but Avithout malice killed John Leonard by shooting him Avith a pistol and such killing Avas the result of passion .heated blood suddenly aroused without sufficient provocation solely, then that would be manslaughter in the first degree.” To this portion of the court’s oral charge to the jury the defendant separately excepted, and also separately excepted to the other portion of the court’s oral charge to the jury which is copied in the opinion.
    The defendant requested the court to give to the jury the following Avritten charges, and separately excepted to the court’s refusal to give each of them as asked: (1.) “Manslaughter is the unlawful and intentional killing of a human being Avithout malice or implied, and if the jury believe beyond a reasonable doubt that Leonard struck Will Thomas a blow on the head with his fist and that while angry from such blow and with no time for reflection Will Thomas immediately and without malice shot Leonard in the arm, from which shot Thomas died, then the jury may find Will Thomas guilty of manslaughter but of no higher offense.” (2.) “A statement by a witness in this case who- is not a physician that the deceased- died during an operation in Birmingham is not conclusive on the jury that said operation was an operation for an aneursm without more.” (3.) “If the juy believe the evidence beyond a reasonable doubt, they-will find the defendant guilty of manslaughter.” (4.) “If the jury believe the evidence beyond a reasonable doubt, they will acquit the defendant of murder in the first degree and of murder in the second degree.” (5.) “No inference or conclusion should be drawn by the jury from the fact that the defendant was not sworn and put on the stand as a witness in his own behalf, nor should this fact have any weight with the jury in reaching a verdict.”
    After the return of a verdict of guilty of murder in the first degree, the defendant made a motion for a new trial, upon several grounds. This motion was overruled and the defendant excepted.
    No counsel marked as appearing for appellant.
    Massey Wilson, Attorney-General, for the State.
    The action of the lower court in overruling defendant’s motion for a new trial is not revisable.- — Burraqe v. State, 113 .Ala. 108,
    The defendant’s objection to the question asked the witness Turner was properly overruled. — Washington v. State, 106 Ala. 58; Ciarle v. State, 78 Ala. 478,
    The objection to the testimony of the witness Allen was properly overruled. — Washington v. State, 106 Ala. 38; Chaffin v. State, 123 Ala. 58; Wright v. State, 136 Ala. 139.
    The portion of the general charge to which the defendant objected was a correct definition of manslaughter in the first degree. — Ragland v. State, 125 Ala. 12.
    The second portion of the general charge of the court to which the defendant objected was proper. — Ragsdale v. State, 134 Ala. 24.
    The 5th charge requested by the defendant ivas properly refused. — State v. Pearce, 56 Minn. 226: State ■. Robinson, 117 Mo. 663; Code, § 4333.
   DOWDELL, J. —

The ruling of the trial court on a motion for a new trial in a criminal cause is not reviewable on appeal. — Durrett v. State, 133 Ala. 119; Hampton v. State, lb. 180; Bondurant v. State, 125 Ala. 31; Burrage v. State, 313 Ala. 108.

There was no error in overruling the defendant’s objection to the question asked the witness Sanders Turner. The objection was general, and it appears that the objection was not made until after the question had been answered. Moreover, the testimony given in response to the question was clearly relevant, tending to show a consciousness of guilt on the part of the defendant, and an intention of flight. — Washington v. State, 106 Ala. 58.

The objection to the testimony of the witness Vassar L. Allen was general, and the court, therefore, committed no error in overruling the same. — Washington v. State, supra. Besides, it was competent for the witness, though not a physician, to testify that he was present when the deceased died under an operation performed on him at the hospital.

There was no error in that part of the oral charge excepted to by the defendant, wherein the court defined manslaughter in the first degree. — Ragland v. State, 125 Ala. 30. Nor was any error committed by the court in that part of the oral charge excepted to by the defendant, wherein the court said: “Under the instructions I have given you as to what constitutes murder in its several degrees and manslaughter in its several degrees, the defendant, if guilty at all, under the evidence in this case, would be guilty of either murder in the first degree, murder in the second degree or manslaughter in the first degree, or guilty of nothing as you may determine.’’ — Ragsdale v. State, 134 Ala. 24.

The evidence was without dispute, that the wound in-flirted by the defendant upon the deceased was a dangerous one, furthermore, that an operation was necessary. In Daughdrill v. State, 113 Ala. 84, it was said by this court: “The true doctrine is that where the wound is in itself dangerous to life, mere erroneous treatment of it, or of the Avounded man suffering from it, will afford the defendant no protection against a charge of unlawful homicide.”

There is no evidence in the case which would have authorized the court to charge upon the subject of manslaughter in the second degree.

Written charge number 1 requested by the defendant is confused. This charge hypothesizes the death of Thomas, who is the defendant. No doubt this was unintentional, and that Leonard, the deceased, Avas meant. Still, written charges are required to be given or refused as requested. The charge for the fault pointed out, if for no other, Avas properly refused.

Charge 2 requested by the defendant is argumentative and for that reason no error Avas committed in its 'refusal.

There is evidence from which the jury might Avell have found the defendant guilty of murder in the first degree, and Avhich they did by their verdict. Charges 3 and 4 were, therefore, properly refused.

The bill -of exceptions states that, “the defendant Avas not SAVorn as a Avitness and did not testify in his oavii behalf.” Section 5297 reads as folloAvs: “On the trial of all indictments, complaints, or other criminal proceedings, the person on trial shall, at his oavii request, but not otherwise, he a competent Avitness; and his failure to make such request shall not create any presumption against him, nor be the subject of comment by counsel.” The fifth Avritten charge to the jury requested, by the defendant, in substance states the laAv applicable to the case. It Avas a fact that the defendant failed to malee the request to testify in the case, and the charge could not, therefore, be condemned as being abstract. Nor should it be condemned as being argumentative, since it contained nothing more than the statement of an ad-mittecl fact and the law applicable under the statute. This charge should have been given, and for the error committed in its refusal, the judgment of the court below must be reversed.

Iteversed and remanded.  