Pitts v. State

140 Ala. 70 | Ala. | 1903

DOWDELL, J.

The appellant was tried and convicted on an indictment for the murder of Wesley Cooley, and was sentenced to imprisonment in the penitentiary. On the trial one Bonner, who was examined as a witness for the State, testified that he heard the shooting by the defendant and Cooley, which resulted in the death of the latter, and that a few minutes afterwards, the defendant came to his (witness’) house. The defendant’s counsel then asked the witness what the defendant said to him when he came to witness’ house. To this question the court sustained an objection interposed by the State. It is now insisted by appellant that the evidence sought was a part of the res gestae of the difficulty, and that the court erred in its ruling. It is not disputed that this was several minutes after the shooting that was heard by the witness, and after the defendant had walked a quarter of a mile to the home of witness. The difficulty had ended, the declaration sought to he introduced was separate in point of time and place from the shooting. It is difficult to understand how under the circumstances the declaration sought to be introduced could form a part of the res gestae of the shooting. We are quite dear that thé court committed no error in sustaining the objection.-Harkness v. State, 129 Ala. 71, 78; Nelson v. State, 130 Ala. 83; Goley v. State, 87 Ala. 57.

The testimony of Mrs. Cooley, both as to the difficulty between the defendant and the deceased, on Thursday night previous to the shooting, and as to the threats made at that time b}r the defendant against the deceased, was properly admitted as tending to show motive and malice. It is no violation of the rule forbidding inquiry into the particulars of a previous difficulty, to allow evidence of threats made by the defendant against the deceased, although made) at the time and forming part of such previous difficulty; and this upon the general proposition, that it is always admissible to prove previous threats' made by the defendant to show malice.-Harkness v. State, 129 Ala. 71. Thé motion of the defendant to exclude the statement of Mrs. Cooley that the defendant in the previous difficulty of Thursday night before the shooting on Saturday cursed the deceased, does not appear to have been ruled on by the court.

What is said above applies to the testimony of other witnesses as to threats made by the defendant against the. deceased at the time of such previous difficulty. The testimony of the witnesses Collins and McAllister as to the appearance of the deceased’s leg just before he died, that it “looked dark” an inch or so from where it had been., amputated, was not objectionable on the ground that it related to matter calling for expert evidence, and that these witnesses were not shown to be experts. They testified merely to a fact and not to a conclusion resting in opinion, or to an opinion based on any hypothetical statement. There was no error in sustaining the State’s objection to the question asked the witness Collins by the defendant’s counsel, “If in the morning of the day on which Cooley died, Cooley did. not say that his bowels hurt him, and that if he could get rid of the bowel trouble he would get all right?” The evidence sought to be elicited by this question was not addressed to the court for the purpose of determining the sufficiency of the predicate for the admission of dying declarations, but was offered for consideration by the jury, upon the question of the defendant’s guilt or innocence. For this purpose it was inadmissible, being nothing more than hearsay evidence. Besides, it was immaterial.

Dr. Chalker, the physician who attended upon the deceased, had already testified, “that for a day or two before, and at the time of his (deceased’s) death, he was suffering with a very severe bowel trouble, that he complained that his bowels were paining him a great deal. That severe bowel trouble sometimes results from shocks, loss of blood, and a weakened condition resulting from gun shot wounds.” It is. contended by counsel for appellant, that with the evidence in, sought to be elicited, it would have been open to the jury to find that death resulted from the bowel trouble. If death resulted immediately from a “bowel trouble,” which had been brought on or superinduced by the gun shot wound, or the amputation of deceased’s leg, rendered necessary by the gun shot wound, the fact that the “bowel trouble” was the immediate cause of death, would furnish the defendant no protection against a charge of unlawful homicide.-Daughdrill v. State, 113 Ala. 7, 34.

Nor was this evidence competent as a dying declaration. It constituted in no sense a part of the res gestae of the shooting.-Sullivan v. State, 102 Ala. 141-2.

There was no error in allowing the witness Eogers to state that the deceased asked him “to take down his testimony in regard to how the difficulty was.” This was merely showing the witness’s connection with the statement, and was altogether proper.

The predicate for the admission of dying declarations was sufficiently laid. The evidence showed that the deceased had given up hope of recovery. Although some of his friends tried to encourage him, he time and again expressed his belief that he was going to die. The fact that he asked that the doctor be sent for, was not in itself and alone sufficient to affect the admissibility of the declarations under the predicate. It was shown that he was at the time suffering with severe pain in his bowels, and it was natural that he should want the doctor to allay his sufferings.-Milton v. State, 134 Ala. 42, 46; Clark v. State, 105 Ala. 91.

The statement of the- deceased written out. by the witness Eogers as the dying declaration, was offered in evidence, and was objected to by the defendant, which objection was overruled. The paper is no where shown in the bill of exceptions, nor is its substance given. In the absence of the paper and evidence of its contents, we are unable to pass upon the trial court’s ruling on the objection, except upon the ground of the objection, that no sufficient predicate had been made for the admission of dying declarations, and this we have already said was sufficiently shown. There was, besides, testimony of other witnesses of dying declarations made by the deceased in regard to the difficulty in which he was shot "by the defendant.

There was no error in refusing to allow the defendant to prove that the deceased, in the previous difficulty, which had been testified to, cursed the defendant. This would have been in violation of the rule, which forbids entering into particulars of a previous difficulty.-Willingham v. State, 130 Ala. 35; Harkness v. State, supra.

There was no error in refusing to allow the defendant’s witness Amerson to testify that the deceased on Friday morning after the first difficulty, and prior to the day of the shooting, asked the witness “if he could get a pistol from him, or if he knew who had a pistol that he could get.” It was not shown that the question was asked with reference to the defendant, and, therefore, it did not imply any purpose to injure him. If what was proposed to be shown by this evidence could be classed as a threat, it was objectionable-as being general, and not being directed to any particular individual. As was said in Henson v. State, 120 Ala. 316, 320, “A mere general threat or one not directed to any special person is not in such a case admissible as evidence to show an intent to harm a particular individual.”

. Charge “A” given at the request of the State was proper.-Hale v. State, 122 Ala. 85.

A charge similar to charge “B” was approved by this court in Smith v. State, 118 Ala. 117. The giving of this charge was free from error.

Charge “D” was a correct exposition of the law, and the giving of it as requested was free from error. So, too, charge “E” given at the request of the State, correctly stated the law.-Ming v. State, 73 Ala. 1.

Charge 1 requested by the defendant was under the evidence in the case calculated to mislead the jurv, and for this reason, if for no other, was properly refused.

Charge 2 requested by the defendant was expressly condemned in Sanders v. State, 134 Ala. 74.

The court’s action in excluding from the jury certain statements made in argument by defendant’s counsel as shown in the bill of exceptions, was free from error. The matter excluded had no legitimate bearing on the case, and these statements were unsupported by the facts in evidence before the jury.-Cross v. State, 68 Ala. 466; Dunmore v. State, 115 Ala. 69.

We find, no reversible error in the record, and the judgment appealed from must be affirmed.

Affirmed.