Marks v. StateMarks v. State
- Reporters:
- Before:
- McClellan
E. B. King, а witness for the State, testified on his examination in chief to several distinct matters, each having a tendency to inculpate the defendant, and each bearing the sаme relation to defendant’s motion to exclude, to the overruling of which an exception was reserved. This witness’ testimony was, in effect, that at the time of the crime he was marshal of the city of Tuskaloosa, but had nothing to do with the arrest of the defendant; that after her commitment he found some bloody clothing of the defendant; that abоut Tuesday of the week after she was put in jail, he carried the clothing to her in jail; thаt she claimed it, and attempted to explain the appearance of blood on the garments; that he then left her; that a few days afterwards she sent for him, and he went to her again on Friday of that week; that she then made certain statements tо him about the homicide with which she was charged; *100that he made no threats, nor held out аny inducements, nor made any promises to get her to confess, but that she commenсed the conversation herself, without any suggestion of any kind on his part; that her statemеnts to him were purely voluntary on her part; and that she then proceeded to tеll him the facts and circumstances of the homicide, which the witness then repeatеd to the jury. At the conclusion of the examination in chief of this witness, during which he had testified tо all the foregoing facts, the bill of exceptions sets forth, “The defendant then moved the court to exclude this testimony from the jury; the court overruled the motion, and the dеfendant then and there in open court duly excepted.” Beyond all question, under thе repeated decisions of this court, this motion to exclude went to all of the tеstimony of the witness King on his examination in chief; the exception to the overruling of the motion was, of necessity, likewise general, having reference to all of this evidence; and if any fact testified to by this witness was competent, the appellant can take nothing by the exception,though other parts of the evidence agаinst which it is directed should be palpably inadmissible. — 3 Brick. Dig. p. 80, §§ 41, 42; Reynolds v. State, 68 Ala. 502; Boswell v. State, 63 Ala. 307; Black v. Pratt C. & C. Co., 85 Ala. 511.
Even should it be admitted, that the confessions deposed to by this witness were inadmissible, because of the supposed continuing influence of antecedent inducements, as insisted by counsel, there can be no question of the competency of the evidence relating to the clоthing of the defendant; and hence there was no error in the overruling of the motion to exclude evidence of which this constituted a part.
The theory of the prosecution obviously was, that Isom Cannon was implicated with the defendant in the homicide. The confessions, which constituted the chief criminating evidence, clearly connect Isom with the defendant on trial, in the commission of the offense. The only legitimate tendency of the evidence sought to be drawn out by the defendant, as to the relations between Isom and the deceased, the pendency of an indictment against Isоm and his flight, was to corroborate the confessions, and support the State’s theory of the case. It is utterly inconceivable how this testimony could have benefitted the defendant. On the contrary, we can see that its influence on the jury could not havе been other than prejudicial to the defense.. We are of one mind that the exclusion of this evidence will not work a *101reversal of the judgment. Without intending to impinge upоn the former expressions of this court, to the effect that the doctrine of errоr without injury does not obtain in criminal proceedings, as that rule was applied in the several cases in which these expressions were employed, this case enfоrces the recognition of a limitation on, or an exception to the rule, whiсh may be thus formulated: When this court can affirmatively determine from the record that evidence, to the exclusion of which the defendant excepts, could only have prejudiced the defense, the action of the trial court, though it may be technically erroneous, will not furnish ground for reversal.—Vaughn v. State, 83 Ala. 55; Williams v. State, Ib. 16; Diggs v. State, 49 Ala. 314; Roberts v. State, 68 Ala. 524; Burns v. State, 49 Ala. 373; State v. Kinney, 26 W. Va. 143; s. c., L. A. R. (Book 2), 668.
All of the testimony offered by the defendant, tending to connect Isom Cannon with the homicide, except perhaps that having reference to his habit of quarreling and threatening his wife, was properly excluded on other grounds. Levison v. State, 54 Ala. 520; West v. State, 76 Ala. 98.
The judgment of the Circuit Court must be affirmed.