Monteith v. State

49 So. 777 | Ala. | 1909

McCLELLAN, J.

The conviction was of murder in the second degree. The theory of the state appears to have been that defendant laid in wait for deceased on a roadside and killed him with a shotgun. A circumstance properly submitted to the jury for their consideration was the fact that there was a sort of “cut-off” path leading from Carpenter, a village, to the road on which -deceased was traveling from Carpenter when he was killed, and also that defendant knew of this path, and had on occasions before traveled it, as well as the fact that it was generally used by the people. The tendency of this testimony naturally was to show, along with the other evidence, that defendant, being at Carpenter shortly before the shooting, anticipated deceased’s presence on the road, and took to the path as a nearer way than the road, to arrive at the place of the tragedy before deceased did. There was no error in admitting the indicated testimony.

The state presented testimony tending to show that deceased was a witness against defendant, among others, on a charge of larceny; that defendant was aggrieved over this, and had at various times made threatening allusions to the fact, among them, that deceased would never appear against him. Some of these threats or statements were made something like a year before the shooting. The court admitted, over defendant’s objection, the indictment against defendant and others, and also the record of the circuit court, showing a continuance of the prosecution for cause stated. All this evidence was clearly admissible. — 1 May. Dig. pp. 329, 330. It was competent as tending to show motive and intention, and to give point to the hostile statements imputed by some of the witnesses to the defendant. The order for continuance tended to support the natural inference that the prosecution, affording defendant grievance against deceased, was undisposed of at a period just before or at the time of the shooting. The merits of the larceny prosecution were properly forbidden to be inquired into. — Commander’s Case, 60 Ala. 1.

The defendant introduced his sister, Miss Monteith, as a witness, and she testified to illicit relations having existed between her and deceased some time previous to the shooting; that defendant knew of this; that deceased attributed witness’ refusal to again cook for him to defendant’s interference; that he (deceased) entertained ill will toward defendant on this account; and that defendant was instrumental in keeping her from going back to deceased’s service. She testified that she had three children, the eldest seven years of age. On cross-examination the state asked her if she had not been delivered of a bastard child and whether she had not sexual intercourse with many men. While defendant’s objection was overruled to these questions, from the bill it does not appear that either were answered by the witness. No prejudice, therefore, resulted to defendant, if we assume the questions sought inadmissible testimony.

The bill recites : “The defendant introduced a number of witnesses, to wit, Doc. Hembree” and 10 others named, whose testimony tended to show that Ladd’s character was bad; that he was quarrelsome, over-bearing, dangerous, and a bloodthirsty man. On cross-examination state’s counsel asked witness if Ladd was not a good neighbor and a kindly hearted man. The defendant objected, because illegal and immaterial. The court overruled the objection, and defendant excepted. Some answered that he was; some that he was not. On this status it is apparent that the trial court cannot be said to have erred to defendant’s prejudice. The “witness” to whom the question was put, and thereupon objected to by defendant, and his objection overruled by the court, may have been among the “names” of those who answered the question in the negative, and, if so, obviously to defendant’s advantage.

Charges 2 and 3, refused to defendant, singled out features of the evidence, and were for that reason, if not others, properly refused. Charges 4, 6, and 8 were argumentative, and were, hence, well refused. Charge 5 omits, in hypothesis, freedom from fault in bringing on the difficulty. Charge 7 omits to hypothesize that the act was not the expression of an honest belief on the part of defendant of the necessity to shoot when he did so.

None of the special charges given at the instance of the prosecution were erroneous as instructions.

There is no error in the record and the judgment is affirmed.

Affirmed.

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