Gregory v. State, 140 Ala. 16

TYSON, J.

The motion to quash the special venire because E. L. Garner was drawn and ordered summpned and the sheriff summoned T. J. Garner in his stead, presumably by mistake, was properly overruled. The question here presented is not materially different from the one where the sheriff’s return as to a special venire-man is'“not found.” Where this is the case, this court has uniformly held this is not a ground to quash.-Barnes v. State, 134 Ala. 36; Caddell v. State, 129 Ala. 63; Daughdrill v. State, 113 Ala. 7.

In Barnes’ case, it was pointed out that the cases of Thomas, (94 Ala. 74) and Ryan (100 Ala. 108), relied upon by appellant, have no application, for the reason that in those cases the persons not summoned were regular petit jiorors for the week in which the case was set for trial. Smith v. State, 133 Ala. 73, is of the' same character.

The question propounded to witness Henry Mann by defendant on cross-examination, “Had you been throwing rocks that day?” was wholly irrelevant. Had be answered it affirmatively, the answer would not, as is contended, have tended to show that he entertained feelings of hostility to defendant. The case of Askew v. State, 94 Ala. 4, in which this language was used: “It may be that the intoxication of the deceased was a circumstance to be considered by the jury in determining whether there was a present, pressing necessity for defendant to take the life of the deceased, to protect his own or to prevent great bodily harm,” is relied upon as supporting the contention that the ruling of the court was erroneous in sustaining the objections to certain questions propounded upon cross-examination to witnesses Henry Mann and Dr. Baird. Conceding the soundness of the principle in a proper case, clearly the objections to the questions propounded to Mann were properly sustained. Whether the deceased had a jug of whiskey at his home on the day of the killing or carried one home on that day did not tend in the remotest degree to show that he was intoxicated when the difficulty occurred.

Again, conceding that Dr. Baird discovered evidence of whiskey having been taken by deceased after he was shot and further conceding that this fact would tend to establish that he was intoxicated when the shooting occurred, being offered, as it was, when there was no evidence before the court tending to establish the necessity to kill, was patently irrelevant. Obviously, it stands upon no higher plane than threats by deceased against his slayer. _ And these are never admissible until some evidence has been adduced tending to show self-defense. Gafford v. State, 122 Ala. 63, and cases there cited.

The trial judge could not know that such testimony would be subsequently offered by defendant. In short, at the stage of the trial at which this testimony was sought to be elicited, all the evidence that had been introduced showed, without adverse inference, the defendant to be the aggressor.

The dying declarations made by deceased deposed to by Patillo and McConnell were properly admitted. Gibson v. State, 126 Ala. 59; Daughdrill v. State, supra; Jordan v. State, 82 Ala. 1, and cases there cited.

The statement made by the deceased as to his condition and the circumstances under which it was made, differentiates it from those, held insufficient as a predicate, in the cases of Titus (117 Ala. 16), Justice, (19 Ala. 182) and Walker, (52 Ala. 192).

On the authority of Shell v. State, 88 Ala. 14, the court committed an error in excluding the statement in the showing made for Dr. Wharton, that deceased said to him, after he was wounded, “That if Gregory’s pistol had not been a self-acting pistol, he, Mann, would have gotten Gregory' first.” This testimony tended to contradict the statement made by deceased to Patillo and McConnell, offered by the prosecution as to the difficulty resulting in the homicide.

We are unable to see the pertinency of the question asked witness Howard Mann, whether or not his father was a constable before and at the time he was killed.

. The defendant was properly not allowed to state why he had the pistol on the occasion of the difficulty. His secret motive or purpose for having the pistol concealed on his person was not a matter to which he should have been allowed to depose to in his own behalf.-Linnehan v. State, 105 Ala. 21, 25.

It is true that when a showing has been introduced for an absent witness the opposite party will not be allowed to impeach the witness by proof of contradictory statements; the reason for this being that the necessary predicate cannot be laid.-Gafford v. State, 125 Ala. 1; Pool v. Devers, 30 Ala. 672. But the principle has no application when the impeachment is by showing the general character of the witness. When a showing is made for a witness and it is admitted as evidence, it cannot be doubted that it stands in the stead of his testimony, and for all the purposes of the trial it is his testimony as a witness on the stand, and must be taken by the jury as if the witness was actually present and had testified in person to the facts before the jury.-Gaf ford's case, supra; Woolsey v. Jones, 84 Ala. 88. This being true, “the universally accepted doctrine that evidence of the bad character of any person becoming a, witness may be introduced by the adverse party for the purpose of showing that the testimony of such witness is unworthy of belief,” (5 Am. & Eng. Encyc. Law, 2d ed., 874) applies.

The testimony of Johnson and Mann, offered by the State in rebuttal, was properly admitted. It' tended in some degree to contradict the statement of defendant’s daughter, Lora, that the deceased, just as he fell, threw his pistol over in the field.

Numerous other exceptions were reserved to the rulings of the court on the admission and exclusion of testimony, but they are not insisted on. However, we have examined then), and find no error in any of the rulings.

Nor are the written charges requested and given at the instance of the State insisted upon as being erroneous. Nor are they erroneous. Each of them asserts a correct proposition of law, and was" properly given.

We have examined the several written charges refused to defendant, and find that there was no error in the refusal of any of them except the one numbered 2. That charge should have been given.

Reversed and remanded.

Case Details

Case Name: Gregory v. State

Court Name: Supreme Court of Alabama

Date Published: Nov 15, 1903

Citation: 140 Ala. 16

Court Abbreviation: Ala.