Mitchell v. State, 14 Ala. App. 46

Mitchell v. State

14 Ala. App. 46 | Ala. Ct. App. | 1916

BROWN, J.

(1) The mistake in the name of the juror Perry as it appeared on the copy of the venire served on the defendant and on the list from which he was required to strike in selecting the jury furnished no ground for quashing the venire. —Acts 1909 (Special Session) § 32, p. 320; Bone v. State, 8 Ala. App. 66, 62 South. 455; Smith v. State, 165 Ala. 56, 51 South. 611.

(2) In criminal prosecutions, evidence of the general good character of the accused is admissible as original evidence tending to exculpate from the charge, and the weight of authority establishes what we consider the better rule, that such evidence, when offered, should be directed to the particular traits of character involved in the nature of the charge.—Underhill, Criminal Evidence, §§ 77-84; Cauley v. State, 92 Ala. 71, 9 South. 456; Baulkum v. State, 115 Ala. 118, 22 South. 532, 67 Am. St. Rep. 19; Snead v. State, 142 Ala. 14, 39 South. 329; Commonwealth v. Nagle, 157 Mass. 554, 32 N. E. 861; Gandolfo v. State, 11 Ohio St. 114; Coffee v. State, 1 Tex. App. 548; Kee v. State, 28 Ark. 155; Westbrooks v. State, 76 Miss. 710, 25 South. 491; State v. Kennedy, 177 Mo. 98, 75 S. W. 979; Arnold v. State, 131 Ga. 494, 62 S. E. 806.

(3) . The character of the accused in this respect can be made an issue only by the accused offering proof of his good character, and when he does, the state may offer countervailing evidence of his general bad character in the respect in which it has been made an issue (Smith v. State, supra), or may, on the cross-examination of the defendant’s witness, show reports or rumors current in the community of defendant’s residence before the alleged criminal act under investigation derogatory to his good character in the respect he has put it in issue, for the purpose of showing that the witness was mistaken in his .estimate of de*50fendant’s character.—Bullington v. State, 13 Ala. App. 61, 69 South. 319; Ragland v. State, 178 Ala. 59, 59 South. 637.

(4) But the evidence must be limited to repute affecting the defendant’s character current prior to the commission of the crime under investigation.—Ragland v. State, supra; Griffith v. State, 90 Ala. 583, 8 South. 812.

“It is only just that this evidence should be free from any imputation or suggestion of wrongdoing which may have arisen from a public discussion of the crime or of the arrest of the accused. To permit the inquiry to extend down to the arrest or trial would be to embarrass, if not destroy, the probability of innocence arising from good character by evidence of a single wicked transaction, which the accused may not have committed at all. * * * Thus, for example, the state is not entitled to bring out on cross-examination of a witness, called to prove the good character of the accused, that, after the commission of the crime, he had heard that the accused had been guilty of actions and conduct that would indicate that the witness was mistaken in his estimate of good character.”—Underhill, Criminal Evidence, § 83, p. 150; White v. Commonwealth, 80 Ky. 480; Powers v. State, 117 Tenn. 363, 97 S. W. 815.

Repute concerning specific acts affecting the character of one accused of crime after its commission too often emanate from sources of prejudice, interest, and bias growing out of the alleged criminal act, and to allow testimony affected with such infirmities would offer too much incentive for the circulation by interested parties and their friends of false reports, for the purpose of destroying the general reputation of the accused and depriving him of the benefit of a good character.

The result is, the learned trial court erred in overruling the defendant’s objections to the questions of the solicitor on cross-examination of the defendant’s character witnesses eliciting testimony as to what they had heard since the alleged crime, although the particular act inquired about was reported to have occurred before.—Ragland v. State, supra; Forman v. State, 190 Ala. 22, 67 South. 583.

(5) What we have said above applies only to character evidence admissible as exculpatory evidence. If the accused testifies as a-witness, the credibility o,f his testimony may be impeached, like any other witness, by showing his general bad *51character; but in cases where the character of the accused in both respects is made an issue, to avoid impinging the principles above stated, the impeaching evidence, when requested by the accused, should be limited by the court to the purpose of impeaching the cridibility of the witness.—McGuire v. State, 2 Ala. App. 219, 57 South. 57; Byers v. State, 105 Ala. 31, 16 South. 716; Fields v. State, 121 Ala. 16, 25 South. 726; Sweatt v. State, 156 Ala. 85, 47 South. 194.

(6) The objection to the question to the witness Nina Mitchell, calling for her undisclosed motive or purpose in going to her brother’s house, was properly sustained.—Bullington v. State, supra.

(7) The witness Kendrick testified on his examination in chief that the knife found by the defendant’s daughter, Grace, ■“had not been moved; it had been rained on; the rain had beaten on it and dried on it.” The question to which objection was sustained called for a repetition of this testimony, and objection was properly sustained.

(8) It is not permissible for a witness to usurp the functions of the jury by stating conclusions’ as to the very matters in issue. What.the deceased was doing at the time he was shot was for the jury, and the court properly excluded the statement of the witness Mrs. Kendrick as to what deceased appeared to be doing.—Brandon v. Progress Distilling Co., 167 Ala. 368, 52 South. 640.

(9) There was evidence tending to show that the deceased was a peddler in the community where he was killed, and that on the day of the homicide he was out collecting. The page of his account book containing an entry of an item against “Mrs. John Mitchell” was properly admitted as evidence tending to show the motive of deceased in going to the house 'of the defendant.

(10,11) The evidence offered by the state tended to show that the deceased was shot in the back as he was leaving the defendant’s house. If this was true, although it be true that he provoked the original difficulty, if he had withdrawn from it in •good faith and was making an effort to get away, the defendant, when he renewed the conflict, put himself at fault, and cannot invoke the doctrine of self-defense.—Jackson v. State, 2 Ala. App. 59, 56 South. 96. Charges 4, 6, and 7 ignore this phase *52of the evidence, and the principles of law applicable, and were properly refused.

(12) Charge 7 is faulty in another respect. It asserts the doctrine of apparent peril as to defendant’s wife, and pretermits an honest belief entertained by the defendant that his wife was in such peril.—Williams’ Case, 161 Ala. 52, 50 South. 59.

(13) Charge 6 is condemned for the further reason that it ignores the doctrine that the peril, real or. apparent, must exist at the moment the shot is fired. If peril previously existed, but has passed, the necessity that excuses passes with it.

We have examined all other matters presented on the record and find no errors, other than 'the one above indicated, and for this the judgment is reversed.

Reversed and remanded.