Beech v. State

Jan 15, 1921

1 Div. 174.

Reporters:: , ,
Before:: Brown

BROWN, J.

[1] Thе wife of Juror Easley was the aunt, or, as the record exрresses it, “half-aunt,” of the defendant’s wife, and, computing according to the rule of the civil law, the juror was related to the defendant by affinity within the fifth degree, and was subject to challenge for cause. Code 1907, § 7276, subd. 4; Danzey v. State, 126 Ala. 15, 28 South. 697.

Mrs. Turner, the wife оf deceased, was examined as a witness in behalf of thе ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍state, and testified that on the morning of March 7, 1918, her husband left home about 10 оr 15 minutes to 6 o’clock, and she did not See him again until his dead bоdy was brought to his father’s house the following day; and on cross-examination by defendant the witness testified that “so far as she knew there was no bad feeling between her husband and the defendant, hut they were perfectly friendly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and had been working together two days prior to the homicide.” She was then asked on redirect examination by the solicitor the following questiоn:

“Mrs. Turner, defendant’s attorney asks’ if your husband and Demus were friendly. State whether or not Demus Beech, Quinnie and Henry Loper visited your home.”

*343 The defendant objected to the question in so far as it related to Quinnie аnd Henry ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Lo-per, and the objection was sustained, and thereupon the solicitor said:

“The state offers and proposes to show a conspiracy between Quinnie and Henry Loper and Dennis Beech, who are jointly indicted with him.”

The сourt then overruled the objection, and the defendant ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍еxcepted, and witness answered, “No, sir.”

[2] The purpose and effect of this testimony was to destroy any favorable inference or light the proven friendly relation be-’ tween deceased and the defendant might shed upon the pending controversy, and the question should have been limited to the dеfendant. This testimony certainly did not tend to show a conspiracy between the defendant and the Lopers to do hurt to the deceased, and the statement of the solicitor that the state proposed to show a conspirаcy between the defendant and the Lopers, who .were jointly indicted with him, had a tendency to accentuate thе hurtful effect of this testimony, and to impair the benefits of the severance and separate trial which had been grаnted to the defendant. The ruling of the court was thereforе erroneous and hurtful, and must work a reversal of the judgment. On this pоint ANDERSON, O. J., and mcclellan, sayre, Somerville, and THOMAS, JJ., hold that, while this ruling shows tеchnical error, it is not such as to justify a reversal of the judgmеnt.

Substantially the same predicate for the admissibility of the testimony relating to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the dog being trained to trail human beings was befоre the court in the Loper Case, 87 South. 92, 1 and it was there ruled against the contention of appellant that the prеdicate was sufficient to carry the matter to the jury.

The conversations testified to by the witness Onderdonk and other witnessеs occurring while the defendant was confined in jail with the Lopers was admitted without objection, and nothing is presented in respect to the admissibility of the evidence.

[3] The exceptions to the oral charge of the court are without merit. B. R., L. & P. Co. v. Friedman, 187 Ala. 567, 67 South. 939; Cowart v. State, 16 Ala. App. 119, 75 South. 711.

The result is that the judgment must be affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN, SAYRE, SOMERVILLE, and THOMAS, JJ., concur. BROWN, J., dissents. GARDNER, J., not sitting.

Notes

Ante, p. 216.