Kelsoe v. State

47 Ala. 573 | Ala. | 1872

PECK, C. J.

1. A bill of exceptions was signed in this case at the instance of the appellant. It does not state that all the evidence is set out; but contains thirty-seven exceptions to the rulings of the court below, besides the exceptions to the charges given by the court and refused to be given; and forty-four errors are assigned to the rulings of the court on the trial.

It will be a useless piece of labor to examine all these numerous exceptions separately. To do so, will render our opinion obscure and confused, rather than plain and intelligible, as many of them are nearly alike and depend upon the same principles.

The offense was committed secretly, and, as the evidence tended to show, by lying in wait. Offenses so committed can rarely be proved, except by circumstantial evidence. All such eases are surrounded with difficulties, and great carefulness and discrimination are necessary; otherwise innocent parties may be convicted, or guilty ones escape.

In this case, the State first introduced evidence tending to show that the deceased was shot as he was riding along a road, by persons lying in wait behind a log. To show that the appellant was one of these persons, and was the enemy of deceased, as a motive for the act, the State was permitted, against the objection of appellant, to prove by one Bazor, that in March, 1869, two difficulties had occurred between one John P. Myers, a nephew by marriage and Mend of appellant, and deceased; that said difficulties happened on two succeeding days; that in the first difficulty said Myers attacked deceased; that appellant was present with a stick in his hands, and, in the language of the witness, sided with said Myers; that appellant had no fight or difficulty himself with deceased, though the evidence showed the fight originated about him. The appellant was not present at the second difficulty, on the next day. In this difficulty said Myers shot twice at deceased, and deceased shot three times at said Myers, and said Myers was killed. This evidence was admitted by-the court, only for the purpose of showing a cause of enmity on the part of appellant towards deceased.

Although these difficulties may be regarded as slight evidence of the purpose they were offered to prove, yet, as they terminated in the death of appellant’s relative and friend, who had engaged in them on his account, we think there was no error in permitting the evidence to' go to the

2. The conversation between appellant and E. M. Walker, deposed to by the witness E. E. Durden, was properly permitted to go to the jury. It took place, as is manifest, after the difficulties above mentioned, and before deceased was killed. It was a conversation about deceased, and, in answer to the following question asked by said Walker: “What are you going to do about it?” appellant replied, “If I live EH kill him, if it takes me a life-time to do it.” The witness stated that he heard the whole conversation, but did not remember the whole of it so as to repeat it all, but he could repeat the beginning and end of it.

Oral admissions oí declarations are to be received with great caution. — 1 Greenl. Ev. § 200. There are many good reasons for this stated by the author, which need not be here repeated; but I know of no authority for excluding the declarations of a party altogether, because the witness may not remember all that was said. It-often happens that some parts of a conversation make a stronger impression on the mind than others, and such parts may be remembered, and other parts, less impressive, may be forgotten. To exclude conversations and verbal declarations, in all cases where witnesses do not remember and can not repeat the whole of them, will be substantially to exclude such evidence from the courts and juries altogether. The true rule in all cases of verbal admissions and declarations is, to leave them to the jury to determine tire credit and effect to be given to such evidence, under all the circumstances. In some cases such evidence may be very satisfactory, and in others worth but very little. Much must depend upon the intelligence of the party by whom the admissions or declarations are made, and the intelligence and recollection of the witness by whom they are proved.

8. The court committed no error in overruling the objection to the competency of the witness Moseley, because he had been indicted for horse-stealing^ and the jury had at that term of the court returned a verdict of guilty. We clo not decide that, even if judgment had been pronounced on the verdict, it would have rendered the witness incompetent on the ground of infamy, as it is not necessary. But we think it very clear that the witness did not, in legal contemplation, become infamous by the rendition of the verdict, before judgment was pronounced against him on the verdict. Until that was done, it could not be known that a new trial would not be granted, or that the judgment would not be arrested; and in either case the verdict would become a mere nullity, as though it had not been rendered. Mr. Greenleaf, in his work on evidence, (vol. 1, § 375,) says: “We have already remarked, that no person is deemed infamous hr law until he has been legally found guilty of an infamous crime. But the mere verdict of the jury is not sufficient for that purpose; for it may be set aside, or the judgment may be arrested on motion for that purpose. It is the judgment, and tJiat only, which is received as the legal and conclusive evidence of the party’s guilt, for the purpose of rendering him incompetent to testify.” — See, also, the authorities referred to in note 5 to this section.

This witness was introduced to prove alleged conversations with the said Randall May, when he and the witness were in the jail together, in the absence of appellant. These conversations were objected to by appellant, but admitted by the court, as was stated, only against said May; and in this there would have been no error, if the evidence of the witness had been confined to such portions of said conversations as tended to prove the guilt of said May only, or such parts as tended to prove the guilt of both, if of such a character that what tended to prove the guilt of May could not be stated without implicating the appellant also. In such case, there would have been no error, if the court at the time the evidence was received had instructed the jury it was evidence against May only, and was not to be considered by them as evidence against the appellant. This, under such circumstances, would have been the best, and all that could be done for the appellant. The State could not be deprived of the benefit of May’s statements, if necessary to prove his guilt, although they might to some extent implicate the appellant.

But no one, it seems to us, can read the evidence of this-witness, and fail to see that much of it not only did not tend to prove the guilt of May, but to prove his innocence, and, if true, tended strongly to show that appellant was guilty. Let two or three examples be here given. In one place this witness states that May said, “I am not giákty of JcilUng Otts, and I don’t know that I know enough to make me a State’s witness. I am tired of staying in jail.” In another place he’states that May said, “Mr. Kelsoe came to borrow my gun. I asked Kelsoe what he wanted with my gun; he said, I want to go a hunting. Kelsoe said, I don’t know what I may hunt, but I may'hunt some damned rascal.” Again, this witness says, May stated that “ Mr. Kelsoe went off, I suppose hunting. The next time I saw Mr. Kelsoe, he was at the place where W. C. Otts was killed. I saw Mr. Kelsoe and George Myers sitting on a pine log blown up by the roots. They said, have you seen Willie Otts? I said, I have seen him at Mrs. Holmes’. I then started to Garland, but after I saw them I expected what was going to be, and I went towards home. May then said, I went to my field; I heard the guns fire, and I said to Zade Stinson, There! Willie Otts is lolled.” . /

It was proved that Mrs. Holmes lived but a short distance from where Otts was killed. At another time this witness states, that May then went on to tell what he knew about the case; “he said, Mr. Moseley, if you had a son, and I knew who killed him, and wouldn’t tell, you would think mighty hard of me.” Witness said, “I would, and if you know who killed Mr. Otts’ son, you had better tell it.” May then said, “ I am going to; and the reason I have-not done it before, I thought I had to prove what I said. Mr. Kelsoe and Mr. Myers were sitting there, and they undoubtedly must have done it.”

All these several statements were objected to by appellant, and, notwithstanding, his objections, admitted; the court saying they were admitted only against May. As the only effect of these' statements must have been to prejudice the jury against the appellant, and to benefit, rather than injure May, who was acquitted, they should have been excluded; and for this error the judgment must be reversed.

4 The question, as to the competency of May’s wife as a witness against appellant, need not be decided. As May has been acquitted, the question can not arise on another trial of the appellant.

5. The evidence of the witness Perdue, introduced by the State to impeach the said James Myers, one of the defendants named in the indictment, who was examined by appellant without objection, was rightly admitted. It was clearly admissible for that purpose.

After the evidence was closed, the court having been requested by the defendants to do so, charged the jury in writing and at length, which charge is set out at length in the bill of exceptions. After the written charge was given, sundry special charges , were asked by the State, which were given. The defendants also asked several charges, some of which were given, and others refused. These charges have been carefully examined, and we are unable to discover any errors in the charges given, and we think the rulings of the court correct as to the charges refused to be given. We shall, therefore, say nothing further as to any of the charges refused to be given, except the charge in reference to the flight of the appellant. That charge would have been a very proper charge if the last clause had been omitted, to-wit: “ If the facts proven render it doubtful whether the flight was from conscious guilt, the jury ought not to regard it an evidence of guilt.” Although the evidence may have been more or less doubtful as to the cause of the flight, that was no sufficient reason for the jury to disregard it altogether. As this charge was asked in writing, the court was required to give or refuse it altogether, and as the latter part of the charge was improper, the whole charge was correctly refused.

Let the conviction and the judgment of the circuit court be reversed, and the cause remanded for a hew trial. The appellant will remain in custody until discharged by due course of law.