Brown v. State

142 Ala. 287 | Ala. | 1904

ANDEESON, J.

Appellant, Brown, was convicted for an assault to murder and from said judgment of conviction brings this appeal.

While the assaulted party as a state witness was testifying, a predicate was laid for proving a contradictory statement, which he denied, and which the defendant proved was made by the said witness Brown. We think the contradictory statement was material, as there was a conflict in the evidence, as to who was the aggressor.

The defendant asked in writing the following charge, numbered 13: “The court charges the jury, if any witnesses have made contradictory statements as to materia] facts in this case, this may in the discretion of the jury, create a reasonable doubt as to the truth of the evidence of such witness,” which was refused, and the action of the court in refusing said charge is among the assignments of error. This charge has been held good in Cregg v. State, 106 Ala. 44 and Williams v. State, 114 Ala. 19, and which seems to be based upon doctrine in the case of Washington v. State, 58 Ala. 355. We do not think the charge in question asserts' a correct legal proposition, and Gregg v. State and Williams v. State, supra, are hereby overruled, and said charge 13 was properly refused.

The length of time that the assaulted party is confined as a result of the wound inflicted on him by the defendant, is material to the issue as to whether or not there was an intent to kill, as the extent of the wound may shed light upon the subject and would be a proper consideration for the jury in determining the intent. The intent may be inferred from the character of the assault, the want or use of a deadly weapon, and the presence or absence of excusing or palliating facts or circumstances. Meridith v. State, 60 Ala. 441; Jackson v. State, 94 Ala. 89. There was no error in permitting Cox to testify how long he was confined from the effects of said wound.

The objection to the proof of the good character of the witness, Grady Cox; was properly overruled, as he had testified as a witness and had been impeached by the defendant as to contradictory statements, and it was permissible to sustain his credibility by proof of good character. — Haley v. State, 63 Ala. 89; Second Brick. Digest, 547, § 104. If this rule did not prevail, the only ground assigned to the objection of the testimony of the elder Cox, was because he was the father of the witness, whose character was in question. We know of no rule of law prohibiting the father from testifying, either in behalf of his son or his character when the same has been assailed.

It appears from the record that the defendant announced, “not ready for trial,” owing to the absence of several witnesses and was put upon a showing for said witnesses. The showings were prepared and admitted by the state and the trial was entered into. After the trial was in progress one of the witnesses, (Miss McCoy), for whom a showing had been made, appeared. It seems that the defendant neither offered his showing or introduced the witness and that the state was permitted, over the objection of defendant, to introduce in evidence the showing and then the witness to contradict the showing. There is a principle of law, that if a fraud upon the court be attempted, in the getting up of false testimony, or by any other artifice tending to deceive or mislead, or to make the false appear to be true, and this is knowingly assisted or procured to be done by the suitor, this is a circumstance which the jury may rightly consider, to the disadvantage of the party making, or assisting in such an attempt. An honest cause, the law considers, needs not the aid of such reprehensible methods. But, to justify the application of the principle, there must be some proof of it, or testimony of some fact or circumstance, tending to support such inference. Mere conflict among witnesses examined on the opposing side, without more, does not and cannot raise such inquiry, or bring the principle referred to into play. Beck v. State, 80 Ala. 1; 1 Greenleaf on Evidence, § 469; Childs v. State, 76 Ala. 93. We cannot see, however, how the foregoing rule can justify what the court permitted in this case. The showing had been admitted by the state and it was clearly within the province of the defendant to introduce it or not in the absence of the witness. On the other hand, when the witness appeared the showing could not be urged as evidence and the defendant then had the right to introduce the -witness or not, just as he saw fit, and his failure to do'so gave the state no right to introduce the showing. After the showing was offered, it was the state’s evidence, and we are at a loss to see how it could then introduce a' witness, for no purpose, other than to contradict the facts set out in the said showing. It may be that the rule of making showings is often abused and justice is often delayed by injecting into showings, for the sake of getting a continuance, facts that the witness would not verify, .and parties and counsel should refrain, as far as possible, from simulating or manufacturing testimony; and juries often fail to give much credit to showings, because of the often abuse of the rule. Yet there are cases in which lawyers and clients are often deceived as to what they can prove by the witnesses. Cases have occurred where witnesses have'sworn upon the stand facts entirely different to those stated to the party using them, just prior to the examination. We cannot commend what was done in this case, as it would establish a rule that would be a radical departure from the safeguards thrown around the introduction and admissibility of evidence, simply because it sometimes appears that the contents of a showing may be fabricated. The case at bar is an illustration of the many collateral and immaterial errors that can be injected into- a trial by permitting such evidence. The showing was introduced, then contradicted, then defendant undertook to explain and the witness was contradicted, and then character evidence was introduced to bolster up the witness who testified only with reference to this one issue, thus devoting as much time to the truth or falsity of a showing, which was never introduced by the party making it, as was necessary for the trial of the case upon proper issues, to- .say nothing of the infringement of the elementary rules of evidence.

Assignments 8, 9, 10, 11,12 and 13, grew out of the introduction of the showing and should not arise on another trial of this case.

Exception 1 to the general charge was not well taken, as it asserted the law. — Sylvester v. State, 72 Ala. 201.

The second exception to- the oral charge was not well talien. It was simply the statement to the jury of an undisputed fact and which was doubtless uttered as an hypothesis for a fair discussion of the case, in all of its phases and aspects to the jury. — Woodbury v. State, 69 Ala. 242; McNeill v. State, 102 Ala. 121.

Exception 3 to- the general charge was bad, it was the mere garbling of a sentence.

Exception 4 to- the general charge was based upon the court’s definition of the character of drunkenness necessary to relieve the defendant of the specific intent. Voluntary drunkenness excuses no- man for the commission of a crime which does not involve a specific intent, regardless of the nature and character of his mental condition as a result therefrom. The most that can be claimed on such subject, is that the fact of excessive drunkenness is sometimes admissible to reduce the grade of the crime, when the question of intent, malice or premeditation is involved.- — 1 Whar. Crim. Law, § 49; Parrish v. State, 139 Ala. 16; Whitten v. State, 115 Ala. 72; Chatham v. State, 92 Ala. 47; King v. State, 90 Ala. 612. In Chatham v. State, supra, it was held that partial intoxication will not avail to disprove the specific intent; it must be of such character and extent as to- render the accused incapable of consciousness that he is committing a crime, incapable of discriminating between right and wrong, stupe-fication of the reasoning faculty, We think the definition of the trial judge comes within the foregoing rule.

Exception 5 to the general charge was based upon the testimony of Miss McCoy and the showing, and as that question will doubtless not arise on the next trial it is needless to discuss it.

Charges 5, 6 and 9, given for the state were correct. Prater v. State, 107 Ala. 26.

Charge 3, given for the state was proper. — Smith v. State, 118 Ala. 117. Charge 10 was correct.

Charge 5 requested by defendant was properly refused. — Stone v. State, 105 Ala. 60. Charge 6 is a mere argument intended to answer the solicitor. — White v. State, 133 Ala. 222.

Charge 9 for defendant was a mere argument. Charge 12 is bad. — Liner v. State, 124 Ala. 1.

Charge 16 is bad. It is true that if death ensued and the defendant was only guilty of manslaughter, that he would not be guilty of an assault with intent to murder where death did not ensue. But the charge refers a question of law to the jury and left it to them to define what is manslaughter in the first degree.

Charges 17 and 18 were properly refused.- — Scales v. State, 96 Ala. 69. Charge 20 is bad. — Bush v. State, 136 Ala. 85.

Reversed and remanded.

McClellan, C. J., Tyson and Simpson, concurring.