61 So. 54 | Ala. Ct. App. | 1912
Lead Opinion
The defendant was indicted for murder in the first degree, ivas convicted of murder in the second degree, and appeals. The evidence showed that the killing occurred in the rear part of a drug store in the town of Vernon. That for the state tended to show that when the defendant came into the store the deceased and another person were sitting in the front part of the store, the two having just been served drinks at the soda water fountain, the deceased having in his. right hand the glass containing part of the drink.which
A. A. Lowery, the proprietor of the drug store, having-testified to seeing the deceased come from behind the curtain and sink down, -was then asked and answered questions as follows, the defendant objecting to each of the questions on the ground that it called for irrelevant, incompetent, and inadmissible testimony, and moving to exclude each of the answers on the same grounds which were assigned in the objection to the question: “Q. As soon as you saw him sit down there, what did the people in the drug store do; and what did you do? A. The people ran out of the drugstore, and so did 1. Q. What did you do after you saw him fall or sit down? A. I ran out of the drug store. Q. What did you do with reference to Gunter, if anything? A. I went out and called for help.” It is because of its connection with other subsequently admitted evidence that we regard the testimony thus elicited as relevant and admissible. This testimony Avas followed by other testimony, which tended to show the situation and surroundings of the deceased as found by the persons AAdio Avere the first after the shooting to en: ter the store about or immediately after the time of the defendant’s coming out of it. The above-quoted testi-
We are not of opinion that the court was in error in overruling objections of the defendant to the testimony of the witness Bankhead as to the position or attitude of the deceased as the witness saw him in the store after he Avas killed, and as to the position of a soda Avater glass on the floor within a feAV- inches of the right hand of the deceased, and the appearance of liquid on the floor right near the glass. One of the grounds of objection to this testimony was that it was not shown that the conditions and surroundings were the same at the time in reference to which the Avitness testified as they Avere when the deceased sank to the floor after being shot. It is true that the Avitness did not claim to know that such was the fact. But, as above indicated, there Avas other testimony before the jury, from which they would have been authorized to infer that the situation and surroundings of the deceased at the time the witness saAV him Avere the same as they were when the defendant left the scene. Evidence from Avhich the jury could so infer is sufficient, though no Avitness testified that such Avas the case. It is plain that the testimony objected to had a tendency to prove that the deceased received the fatal Avound while he yet held in his right hand the glass containing part of the drink Avhich had been served to him shortly before he and the defendant Avent to the back part of the store. Evidence offered by the defendant tended to shoAv that the deceased left the
■ ■ The court sustained the objections of the state to testimony offered by the defendant to the effect that he said, just after he came out of the store: “It was either kill or get killed; he just lacked that much of getting me.”- It is urged in behalf of the appellant that this testimony should have been admitted as evidence of a declaration which formed a part of the res gestae. We are of opinion that the action of the court in sustaining the objections to this testimony must be upheld on- considerations very similar to those which were stated by this court in' the opinion rendered in the case of ■ Lundsford v. State, 2 Ala. App. 38, 56 South. 89, in support of the conclusion that evidence of certain declarations of the defendant in that case was not admissible because-not really forming a part of the transaction under investigation. On the face of it, the declaration of‘the defendant which was sought to be proved was in its nature a statement by him of what already had occurred — was his version of a transaction Avhich then whs a thing of the past. “The element of time is not always material. If the declarations are narrative and descriptive in their form and character, if they are not the impromptu outpourings of the mind, they should be rejected; though uttered only a few minutes after the main transaction.” — Underhill on Criminal Evidence, § 96-
It was permissible for the prosecution, in connection with evidence tending to show that there had been no change in the surroundings or conditions of the scene of the killing between the time when the defendant left the store and the time when it was searched or examined by witnesses, to prove that no knife was found on the person of the deceased or about the scene of the killing, and that a pistol which the defendant got shortly before he went to the store was found there in a show-case after he left.
A witness may be impeached by proof of statements or declarations, made by him out of court, which are inconsistent with or contradictory of his testimony. But the right'to resort to this method of impeachment is subject to the condition that the attention of the witness first be called clearly and distinctly, with reasonable certainty, to the time when, the place where, and the person or persons to whom, or in whose presence, it is sug-
Other questions presented for review are such as may not arise in another trial of the case, and a discussion of them is not deemed necessary.
Reversed and remanded.
Rehearing
ON REHEARING.
On reconsidering, in view of what has been said on the subject in the opinion rendered in this case by the Supreme Court (Ex parte State, 61 South. 53), the question raised by the objection to the testimony of the witness J. M. Baker as to a statement made to him by the defendant’s witness Holley, we conclude that the bill of exceptions, which purports to set out all the evidence, does not show that the predicate required to render that testimony admissible was laid, yet, as it sets out in narrative form Holley’s denial that he made such statement, the question or questions eliciting such denial not being set out, it does not show to- what inquiry such denial was a response. We understand from the ruling made by the Supreme Court in this case that in this situation, in order to sustain the ruling of the trial court, the presumption is to be indulged that such denial was in response to a question or questions Avhich specified the time and place of the statement inquired about, that the proper predicate had been so laid, and that the testimony of Baker was not subject to the objection interposed to it.
The counsel for the appellant, without undertaking to point out any fault in written charges 1 and 4, given
We do not discover any prejudicial error in any of the rulings of the court in giving or refusing instructions to the jury.
Affirmed.