Kennedy v. State, 62 So. 49

Kennedy v. State

62 So. 49 | Ala. | 1913

Lead Opinion

SOMERVILLE, J.

Defendant was voluntarily present at the time and place of the fatal affray in which his son and grandson were shot to death by John Pearce and others. He knew of the quarrel between Pearce and deceased, and knew of Pearce’s purpose with force and arms to carry his wagons over the disputed section of the road, and knew also of his son’s purpose to resist that aggression to the extent of taking life if need be. Under these ominous conditions defendant remained on the ground and continued a dispute previously begun, and actively aided the Pearce party in the violent removal of the obstruction and in the forcible passage of the disputed roadway. Whether he was a guilty participant in the killing of his son and grandson, which then and there followed, was, under the circumstances shown, very clearly a, question of fact for the jury, although reasonable doubts of his felonious intentions are strongly suggested by some phases of the evidence. The trial court did not err in refusing the affirmative instructions requested by defendant. — Amos v. State, 83 Ala. 1, 3 South. 749, 3 Am. St. Rep. 682.

*15The fact that John Pearce handed to the witness a small bullet box with a picture of a bullet on it, just before starting to the scene of the affray, even if irrelevant so far as this defendant is concerned, was entirely harmless and Avithout prejudice, since it added nothing of importance to Pearce’s otherwise plainly evident intention to use firearms contingently in forcing a passage over the road. The material fact was that he Avas armed ' and ready for a difficulty, and this was knoAkn to defendant.

The fact that deceased, Shelton Kennedy, was, when killed, in possession of the field through which the road ran at the place of the killing Avas a circumstance properly allowed to go to the jury as a part of the res gestae. —Parsons v. State, 179 Ala. 231, 60 South. 864. It of course did not of itself tend to show that defendant or his companions Avere unlawful aggressors, but it was competent in explanation of the presence there of the tAvo deceased men, and of their animus during the affray.

So, also, although defendant Avas not on trial for the killing of Sarge Kennedy, the tAvo killings were parts of a single transaction, and Avere in fact inseparable. Each was of the res gesta; of the other, and every fact and incident illustrative of the one was competent also in illustration of the other. — Smith v. State, 88 Ala. 73, 7 South. 52. Hence the fact that the bullets in Sarge Kennedy’s body entered straight from his back was properly admitted in evidence as a part of the whole transaction.

Defendant’s statement, made just after the killing, that “the boy started to run, and I started to save the boy,” was properly admitted for whatever it was Avorth in illustration of defendant’s attitude and intentions *16during the affray. It was probably beneficial to him, and cannot be regarded as a ground of reversal.

The several charges refused to defendant are too palpably bad to justify discussion.

We find no reversible error in the record, and the judgment will be affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not Sitting.

Rehearing

ON REHEARING.

SOMERVILLE, J.

Counsel for appellant complain -of our conclusion of fact that “defendant knew of .Pearce’s purpose with force and arms to carry his wagons over the disputed section of the road.” On cross-examination defendant said: “Pearce said he had an injunction, and that he would open the road. * * * I knew the wagons would come on behind me. When I saw the wagons coming along up there preceded by John Pearce and Cross Pearce with guns, and Eaton and Fowler along, and the little Pearce boys driving the wagons, I lenew that they were ejecting to open the road.” He further stated that his son had told him, before the Pearces arrived, “I will shoot anybody that travels that road.” In the face of these specific admissions, defendant’s knowledge of an impending forcible passage of the road cannot be regarded as within the pale of controversy.

Counsel erroneously assume that we hold as inadmissible the fact that Pearce handed a bullet box to one of his drivers, Lean Dyer, just before starting off with the wagons, and also the fact that the box had the picture of a bullet on it. Wé think that both facts were, in connection with all the other evidence, very clearly relevant and admissible, equally so with the carrying of a rifle, though certainly not more significant.

*17There being evidence from which the jury might have inferred the existence of a conspiracy between defendant Pearce and others, every act of Pearce’s in prosecution of the common design was of course admissible against defendant also. The questions which elicited these facts had no bearing upon the theory of a distribution of ammunition by Pearce to his codefendants, and tended at most to show Pearce’s possession of ammunition at the time.

The record shows no objection by defendant to the answers, and no motion to exclude them, and .hence we could not in any case consider the rulings complained of in the aspect presented on this application.

The suggestion that the fact that the box handed by Pearce to the witness bore upon its face the picture of a bullet was not competent evidence to indicate the contents of the box, and was in fact the unsworn statement of an unknown witness, and therefore mere hearsay, is without merit. If we treat the inscription as the declaration of a third person, the rule of exclusion fails, for the declaration is in effect made directly to every person who receives the box into his possession; and, when he hands it to another, he in effect repeats the declaration as his own. The correct theory of the matter, however, is that inscriptions designedly placed on bottles, boxes, or other packages, in the ordinary way, for the obvious purpose of indicating their nature or contents, may in general be regarded as competent evidence thereof, at least against those persons who have such objects in their possession, or who dispense them to others. Their external indicia are some evidence, stronger or weaker according to accompanying circumstances, of their internal contents. If a defendant is accused of selling alcoholic liquor contrary to law, it cannot be rationally urged that whisky labels *18on the bottles of liquor dispensed by him would not be some evidence of the nature of the liquor inside; or, if a defendant is accused of committing murder by poison, that an arsenic label on a bottle in his possession is not some evidence that the bottle had contained arsenic while in his possession. In such cases the inference of a content corresponding to the label is clearly one for the jury to draw or not draw, as a conclusion of fact, under all the circumstances of the case. So in this case the bullet label on this small heavy box might legitimately aid the jury to the conclusion, not only that it was a cartridge box, but also that it then had cartridges in it, in view of the conditions under which it was exhibited by Pearce.

The application for rehearing is overruled.

All concur, except Dowdell, C. J., not sitting.