61 So. 263 | Ala. | 1913
The appellant has been thrice tried, convicted, and sentenced to death, and the case is now before this court for the third time on appeal.— Pope v. State, 168 Ala. 33, 53 South. 292; s. c. 174 Ala. 63, 57 South. 245. One James McClurkin heard some one burglarizing his ginhouse during the night. He arose, dressed, and went in pursuit of the burglar, who had driven off in a wagon. He was not seen alive again, but his dead body ivas found close by the public road along which he had made pursuit, with his head battered and crushed, and the bloody stones and sticks used by the murderer lying close at hand. The murder occurred near the house of one John Body, and the theory of defendant was that Body was the real murderer. On the second appeal, after a very exhaustive consideration of the evidence, which was entirely circumstantial, we concluded that there was some evidence from which the jury might have inferred that Body was the murderer. A very important, if not the weightiest, part of the state’s evidence, related to the identification of certain mule tracks leading from the scene of the
There is no material difference between the evidence presented now and on the former trial. On this trial, against defendant’s objection that the question called for the conclusion of the witness, the trial court allowed the state to ask the witness Dodgen, “Could the John Body mule have made the tracks that you tracked from the peach tree around the route that you described?” The witness answered, “No,” and defendant’s motion to exclude the answer,' for the same reason,- was overruled.
This same question was directly presented on the second appeal, and we distinctly ruled that the allowance of such a question was “manifest error” under the former decisions of this court, which we there reviewed, and the judgment of conviction was reversed solely on that proposition. — Pope v. State, 174 Ala. 68, 57 South. 245, 250. Those decisions hold that in such cases as this the witness must state the facts, and leave to
It is obvious that the description and identification or differentiation of these mule feet and tracks required no expert knowledge or skill, and the jury were quite as competent to draw the ultimate conclusion as Avas the blacksmith himself.
It is now urged in behalf of the trial court’s departure from the ruling above stated, that on the first appeal this same tidal ruling was exhibited, and, though not specifically treated in the opinion, it Avas inferentially held to be Acitbout merit by a general declaration that all points disclosed by the record had been considered, and that there was no error — excepting, of course, as to the point of reversal, Avhich was foreign to this question. ■
We have examined the record of the first appeal, and a rigid scrutiny of Dodgen’s testimony shows nothing on this subject other than the statement, “I found John Body’s mule’s hind feet to be sloped, so that they wouldn’t make a track like the one I tracked.” No objection was made to this by defendant, and, indeed, on the second appeal, a majority of the court held that the admission of such an opinion, accompanied by a statement of the facts, was not reversible error. The present question was in no way presented.
For the error pointed out, the judgment must be reversed, and the cause remanded for another trial.
Reversed and remanded.
