Gordon v. State, 140 Ala. 29

Gordon v. State

140 Ala. 29 | Ala. | 1903

SHARPE, J.

The defendant was convicted on an indictment charging him with murder in the second degree, committed by shooting Dukes. The killing was at night under a lighted shed of a furnace plant in the presence of several persons with whom the deceased was in company. When the defendant came near the group the deceased spoke to him about a difficulty which, a few days before, had occurred between them. After some altercation he applied to defendant an op*37probrious epithet and walked towards Mm when defendant backed, drew a pistol and told him to stop. Tliis be failed to do and defendant shot Mm. He continued to approach defendant, who again walked backward and told him to stop, but he did not, and defendant shot him a second time, whereupon deceased fell and expired. Defendant ivas about sixteen years old and the deceased was older and larger than he, but had no weapon. There was evidence tending to show that deceased when approaching defendant placed his hand in his pocket; that he had previously had difficulties with defendant and had thereafter made threats to kill him, which threats were communicated to defendant. The questions raised by the record relate to evidence and requests for instructions to the jury.

The objections made to the question and answer of the witness Lawrence as to whether it was light enough under the shed for defendant, when he came up, to see Dukes, were properly overruled. The question was about the res gestae of the offense, and the ground of objections were not such as to require the trial court to consider whether it called for an opinion as distinguished from a fact. Whether defendant when retreating from Dukes was walking in the direction of home; and what inquiries had been made by Dukes as to folks about the furnace being bad; and whether one of the defendant’s witnesses had been raised with Mm and been his schoolmate, were each immaterial matters. The question asked White, “how came you to go up to where Dukes was,” was about matter likewise immaterial. The question addressed to Hicks, “From the description she gave you then, do you now know who this man was?” called for an answer based on hearsay, and was properly disallowed for this, if for no other reason.

The defendant was not entitled to prove the particulars of the former difficulties.-Harkness v. State, 129 Ala. 71; Rutledge v. State, 88 Ala. 85; Stitt v. State, 91 Ala. 10. This is said in justification of the court’s action in excluding the statement of Mrs. Gordon in which she testified of having, on a former occasion, interposed when Dukes threatened and started toward *38defendant with a pistol, and in refusing to allow Tim-berlake to answer the question asked Avith reference to a former altercation, “What did Dukes do during the difficulty?” and in rejecting the several offers to prove that Dukes had on such an occasion armed himself with a piece of iron. Smith was asked, not on cross-examination : “When Dukes tvas.drinking, is it not true that he Avas a fussy and overbearing man?” The leading character of this question, if nothing else, was enough to justify its disallowance.

It appearing that all Carson and Padgett kneAV of Dukes’ character came from Avhat they heard after the killing, those Avitnesses Avere incompetent to testify as to that character; the rule being that testimony touching reputation founded on opinion expressed post litem mortam is inadmissible.-Griffith v. State, 90 Ala. 583; Reid v. Reid, 17 N. J. Eq. 101; Douglass v. Tousey, 2 Wend. 352; 1 Green. Ev. § 461.

As affecting the credibility of Tierce, whose testimony, in the form of a Avritten statement, had been admitted in behalf of defendant, the State Avas allowed, against separate objections, to introduce in evidence a record shoAving that Tierce had been convicted and sentenced for manslaughter in the first degree, and also a record shoAving he had been convicted of Avhat is termed in the bill of exceptions, “the offense of throwing stones in a railroad train.” The first of these records was admissible, Manslaughter Avas a felony at common law,, and by the common laAV a conviction and sentence for crime belonging to the class called infamous and comprised in treason, felony and crimen falsi rendered the convict incompetent to testify as a Avitness. Our statute on the subject is: “No objection must be allowed to the competency of a Avitness because of his conviction for any crime, except perjury or subornation of perjury, but if he has been convicted of other infamous crime, the objection goes to his credibility.” — Code, § 1795. The object of the enactment Avas to alter the rule previously governing Avith respect to convictions for crime within certain classes, by alloAving for such conviction a discrediting instead of a disqualifying effect, *39and was not intended to create a new rule extending to offenses never within the influence of the common law rule though amounting to statutory felony.-Clifton v. State, 73 Ala. 473; Planters, etc. Co. v. Tunstall, 72 Ala. 142. By statute a wanton or malicious throwing into a car of a railroad train is under some circumstances a felony, and under others a misdemeanor, but it is neither a common law felony nor an offense within the description crimen falsi, and would never have worked the disqualification of a witness.-Clifton v. State, supra; Commonwealth v. Dame, 8 Cush. 384. The conviction of Tierce for throwing stones, whether under the felony or misdemeanor statute, was not the proper subject of proof for the purpose of affecting his credibility or other purpose; and the admission of the record relating thereto was error for which the judgment must-be reversed. .

In the refusal of charges there was no error. Charge 1 was bad for reasons given in Winter v. State, 132 Ala. 32. Charges 2, 3 and 6 were each argumentative, and faulty in that respect, if in no other. Charges 4 and 5, each, improperly pretermitted all reference to the duty of retreat, which under the evidence was a proper subject for consideration. , .

Reversed and remanded.