Maxwell v. State

Nov 15, 1900
Reporters:
Before:
Haralson
HARALSON, J.

1. When the sheriff, Vance, arrested the defendant, the next day after he slew the deceased, he found a pistol in the possession of defendant, in his inside coat pocket. This pistol was fully identified as, and it was nоt denied that it was, the one with which defendant slew deceased. There was no eiwor in overruling defendant’s objection to the evidence, nor to the question which elicited it. Taken in connection with the other evidence in the cause, tending to show defendant’s flight, and the circumstances showing his guilt, its effect was, even if slight, to shed light upon the transaction, leading the mind of the jurors, under all the evidence, to a just conсlusion as to the character of the homicide.—McAdory v. The State, 62 Ala. 154, 159; Liles v. The State, 30 Ala. 24; Campbell v. The State, 23 Ala. 44; Pentecost v. The State, 107 Ala. 92.

2. On the same principle, ithe question asked the defendant’s witness, M. B. Sims, on the cross-examination by the State, “What kind of business was defendant doing in that house?” was not improper. The witness had ‍​​‌​​​‌​​​‌‌​​‌​​​‌​‌‌​‌‌‌‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌​‍just stated, that the house in which the shooting occurred was used as a dwelling and grocery. The answer of the witness, “that the defendant was selling cigars, beer and whiskey,” was but an amplification of *55evidenсe just called for by defendant. If it was proper for defendant to prove ‘bv the witness, that he vas using the hоuse for a residence and grocery, it ivas not improper for the State to aslc the nature and extent of its being so used.

3. Nor was it improper to ask said witness, “What Maxwell [the defendant] was doing behind the counter ?”; and for him to answer that he was “putting out glasses and bottles of beer.” This occurred at the time, оr so nearly in ‍​​‌​​​‌​​​‌‌​​‌​​​‌​‌‌​‌‌‌‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌​‍point of time, to the shooting of the deceased by ¡the defendant, as to be so contemporaneous with it, as that it may not be said that it does not tend to throw some light on the transaction and to show the relation of the parties.-Barker v. The State, 125 Ala. 69.

4. For like reason, it was not improper for the witness to be asked by tlie State, “If the parties- were paying for the beer and Whiskey?” and for him to answer that they were; but iit was not -cоmpetent for him to further state in reply to the question, calling for the answer, that he saw defendant sell beer on Sunday morning of the killing. Neither the question nor the answer named the time on Sunday morning wdien (the selling took рlace. It may have been hours before the shooting, and totally disconnected with it.

What is here said аs to the objection to the question to this witness and his answer thereto as to the sale of whiskey on Sunday mforning, applies with equal force to the objection raised against the evidence of the witnessеs Cunningham and George touching what they knew about the sale of whiskey by defendant on Sunday morning! It may be added, thаt the effect of such evidence was to prejudice ‍​​‌​​​‌​​​‌‌​​‌​​​‌​‌‌​‌‌‌‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌​‍the defendant in the minds of the jury as being a violаtor of the law prohibiting the sale of whiskey in Bibb county, or for selling it without a license (Acts, 1880-81, p. 187; Code, §§ 3521, 5076). He was nоt on trial for such offenses, nor for being a -criminal apart from the offense for which he was being tried. The evidence was irrelevant to the issue in the case against defendant.

5. The defendant being examined for himself stated, *56that be knew Finnon, rfcbe ‘deсeased, when he saw him; that he had been in his place (of business) about four times, the last time, about three days before the killing; that he, defendant, had been at Blocton about three weeks before the diffiсulty; that he had left Bloc-ton, just before the circuit court, and came back just afterwards, and was there, three weeks the last time; that one Peyton had told him, deceased was a dangerous man, and that he had “said [to Peyton] he was coming up there to run me off,” and that he was informed that deceased had made threats against him to run him away or kill him, which threats, as the evidence tended to show, had been cоmmunicated to him.

The State was allowed against the objection of defendant, to ask him on the cross, “Where did you come from to Blocton?” and he answered from Mississippi. The defendant had just stated in his own bеhalf as seen, that he had been ‍​​‌​​​‌​​​‌‌​​‌​​​‌​‌‌​‌‌‌‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌​‍at Blocton but a short time, when he left just ‘before court, and returned whеn court was over. We fail to see that there was error in allowing the State to ask him where he came from when he returned, for that was part of the res gestae of his return to Blocton, which fact he stated in his direct еxamination.

6. The State was allowed, against defendant’s objection, to ask its witness, Brown, on the rebutting examination of witness, “Was Maxwell a resident of Blocton?” This evidence was admissible as tending (to show, that deсeased had no motive ‍​​‌​​​‌​​​‌‌​​‌​​​‌​‌‌​‌‌‌‌​‌​‌​​​‌​‌‌​‌​‌​‌​​‌​‍in threatening to run off or kill a stranger in the community, when no trouble or difficulty had been shown to have arisen between them, and as tending to show that he did not make ithe threats with which he was chаrged to have made.

7. The defendant having already proved that the deceased was a dangerous, blood-thirsty man, when drinking and when not drinking, there was no error in refusing to allow him, afterwards, further to cumu-late proof that he was such a man when drinking. The ■question of his being such a man was not disputed.

8. Charge 3 requested by defendant was properly re*57fused, if for no other reasоn, for (that it ignored any fault of defendant in bringing on the difficulty, which the evidence tended to establish. One who is the aggressor, or who is at fault in bringing on a difficulty with another, in his own home, cannot slay his. adversary, and claim, thereafter, in self-defense, that he was under no duty to retreat from his castle.—Askew v. The State, 94 Ala. 4; Christian v. The State, 96 Ala. 89; Naugher v. The State, 105 Ala. 26; Storey v. The State, 71 Ala. 336.

For the, errors indicated, the judgment and sentence of the court must be reversed, and the cause remanded.

Reversed and remanded.