The opinion
On Rehearing.
Appellant insists that the evidence was free of contrary inferences and undisputed that he shot deceased when he (defendant) was within the curtilage of his own dwelling; that therefore charge 15 should have been given.
We have again carefully scrutinized the evidence and are clear to the view that the record presents no such status. Mattie Wilson, for one, testified, "Shikles was on the line joining him and my brother and Shikles got in behind him down there and halloed at him and then shot him." This, in itself, should suffice as a response to appellant's contention. But then there is other evidence, as instance in the dying declaration of deceased, which, to our minds, placed in dispute the question of the locus in quo of the fatal affray. Therefore, the court could not eliminate from the jury's consideration the proposition of retreat, and charge 15 was correctly refused.
Appellant also asks us to deal with the court's admitting in evidence the threats of defendant against Jim Taylor (father of deceased and owner of the adjoining land, concerning which the boundary dispute arose) and his family. These statements necessarily included the deceased and were referable to him also. Threats of this character have been approved as admissible. Montgomery v. State, 160 Ala. 7 , 24 , 49 So. 902 ; 30 C.J. 191, § 418.
Likewise, do we regard as untenable the argument for error in such rulings of the trial court as the following:
" 'What did he (deceased) appear to be doing?'
"Witness answered: 'Appeared to be coming with a weapon.'
"The solicitor objected to it as invading the province of the jury. The court sustained the objection and the defendant reserved an exception to the ruling of the court.
"He had his right hand in his shirt. I mean under his shirt and through the opening of the shirt.
"Thereupon he was asked by his attorney the following question: 'Where was his left hand?'
"Witness answered: 'Out about like that, like he was fixing to take hold of something.'
"The solicitor objected to the answer. The court sustained the objection and defendant reserved an exception to the ruling of the court."
These statements were not of facts nor shorthand rendering of facts and were not admissible under the rule of such cases. They were conclusions of the witness, invasive of the province of the jury and clearly inadmissible.
We feel duty bound to conclude that no prejudicial error appears, so the application for rehearing must be overruled.
Rehearing denied.