Maddox v. State

Feb 18, 1909
Versions:48 So. 689
159 Ala. 53
1909 Ala. LEXIS 655
MAYFIELD, J.

It has been uniformly held in this state, in homicide cases, that the conduct, demeanor, and expressions of the accused, at or about the time of the homicide, are matters admissible in evidence against, but not for him, unless part of the res gestas. — McManus’ Case, 36 Ala. 292; Blount’s Case, 49 Ala. 381; Miller’s Case, 107 Ala. 40, 19 South. 37; Johnson’s Case, 17 Ala. 623; Henry’s Case, 79 Ala. 42; Armor v. State, 63 Ala. 173; Levison v. State, 54 Ala. 520; Reeves v. State, 96 Ala. 33, 11 South. 296; Pate v. State, 94 Ala. 14, 10 South. 665; Campbell v. State, 23 Ala. 44. This court has probably gone as far as any other in holding such evidence admissible against the accused and inadmissible for him. In the case of Hainesworth v. State, 136 Ala. 13, 34 South. 203, it was held that evidence as to the facial expression of the accused, how he looked or appeared, at a prayer meeting several hours before the homicide, which was committed at the house of the deceased some distance from the place of the prayer meeting, was admissible against him. In Campbell’s Case, 23 Ala. 79, it was held that the state could prove the appearance of the accused on the evening of the day of the homicide, and on the following day, but that the accused could not prove his appearance or expressions three days subsequent to the killing. The reason given in this case, and in other authorities, for the rule, is that evidense of the conduct, demeanor, acts, expressions, or appearance of the accused, shortly before, at the time of, or shortly after, the homicide, is admissible against him, because his conduct, appearance, and expressions, on these occastions, are presumed to corres*57pond with the truth, hut that they operate in the nature of admissions, and therefore they are often admissible as such, but that the defendant can no more make his conduct or appearance evidence for him, than he could his declarations of innocence, as this would permit him to manufacture his own evidence, which, of course, is not, and should not be, allowable.

The Avriter of this opinion thinks that this court and some trial courts have gone too far, in certain of the cases reported, in admitting such evidence against the accused; but the case at bar is not one of the class. The evidence admitted for the state over the objections of the defendant, and that excluded by the court, which was offered by the defendant for the purpose of showing his conduct prior to the time of and after the homicide, was in each instance properly admitted or excluded, except as hereafter appears.

It is insisted with some force by the learned counsel for the defendant that the evidence offered by the defendant as to these questions was admissible, and improperly excluded, because the state had first given in evidence of these matters, and the defendant then had the right to lay before the jury all he said and did at the time and on the occasions referred to by the state’s eAddence on the theory that, Avhere a part of a conversation or transaction is admitted at the offer of one party, the whole or other parts thereof are admissible, if offered by the other. The cases cited by counsel for defendant lay. down the correct rule, which is: The accused cannot give in evidence his own declarations, unless they form a part of the res gestee; but if the state gives in evidence his confessions, declarations, or admissions, then he may give in evidence all that he said in the particular confession, declaration, or admission, and the circumstances attending it, bnt he cannot make this the basis of show*58ing what he said or did on other occasions. None of the evidence offered by the defendant and excluded by the court, except as hereafter referred to, was admissible under this rule. What was said by Justice Brickell, in the case of Burns v. State, 49 Ala. 374, which case is cited by counsel for appellant, is pertinent and applicableto showthere was no error in excluding the evidence offered by the accused, which we quote: “The .prisoner offered to prove exculpatory declarations made by him when he returned to the stillhouse after the shooting, which the court excluded. The bill of exceptions does not inform us whether these declarations formed a part of the conversation of which the state gave evidence, or whether they were made in another and subsequent conversation. Of course, we cannot say that the court erred in rejecting them.”

However, the declarations of the accused, made at or about the time he left home, as to the object and purpose of his leaving, stand upon another footing. They are a part of the res gestee of this matter, though not a part of the res gesfee of the killing. — Kilgore v. Stanley, 90 Ala. 523, 8 South. 130; Pitts v. Burroughs, 6 Ala. 733; Olds v. Powell, 7 Ala. 652, 42 Am. Dec. 605; Harris v. State, 96 Ala. 24, 11 South. 255; Burton v. State, 115 Ala. 10, 22 South. 585; Campbell v. State, 133 Ala. 81, 31 South. 802, 91 Am. St. Rep. 17. The object and purpose of his leaving home at this time was properly made a subject of inquiry on the trial. His guilt or innocence, or, at least, the degree of the crime, might properly, depend upon the question whether he pursued deceased for the purpose of killing him, or whether he left home, not for that purpose, but for the purpose (as he claimed) of going to Mr. Foster’s to get the latter to come to his house to quell the disturbance.

*59It follows, therefore, that the trial court erred in refusing to allow proof of the declarations of the accused, made at or about tbe time of bis leaving borne, to tbe effect that be was going over to get Mr. Foster to come there and stop tbe row or disturbance. For this error, tbe judgment of conviction must be reversed, and tbe cause remanded.

Beversed and remanded.

Dowdell, C. J., and Simpson and Denson, JJ., concur.