59 So. 637 | Ala. | 1912
Lead Opinion
The appellant was convicted of the crime of murder, and sentenced to imprisonment for life.
There was no error in allowing the witness William Gibson to testify as to the confession by the defendant that he had killed the deceased. A sufficient predicate was laid, and, besides, the defendant did not deny that he killed the deceased, but rested on self-defense.
There was no error in allowing proof of tracks near the place of the killing. All the surroundings and circumstances are admissible, and the question as to whether the tracks were those of the defendant was for the jury to decide. The numerous cases cited by appellant recognize the propriety of admitting proof of tracks, but simply hold that the witness must not give his opinion as to whose tracks they were, but must state facts, and leave it to the jury to decide whose tracks they were. — Davis v. State, 152 Ala. 82, 85, 44 South. 545; Leonard v. State, 150 Ala. 89, 93, 43 South. 214.
There was no error in allowing the witness to testify that the tracks looked like they were made by some
There was no error in allowing proof of a gun wad being found near the place of shooting, for the same reasons as stated in regard to the tracks. As to all these matters, there was no injury to the defendant, as he admitted that he was there, and that he did fire the gun which killed the deceased.
The reference, in Hodge v. State, to proof of the gun wads, does not indicate that there was any error in admitting the testimony. — 97 Ala. 38, 39, 12 South. 164, 165, 38 Am. St. Rep. 145. It simply states, what is true as to almost every item of circumstantial evidence, that “by itself, and disconnected with something else to make it relevant, this evidence did not tend to show that defendant, more than any other person, did the shooting.”
There was no error in admitting the testimony of the witness Willingham, in regard to remarks by the defendant the day before the killing, to the effect “that he was going home to die with them, folks or no folks.” The other testimony showed that the defendant had had a difficulty with his home people, to which he was referring. It was for the jury to determine whether the remarks amounted to threats.
The same is true with regard to the testimony of the witness Broaden, as to statements made by the defendant, to the effect that he would have killed both his father and grandfather but for his wife. This showed the animus of the defendant towards his father, whom he afterwards killed. The further statements of this witness, to the effect that his father and grandfather were “doing pretty bad,” and that if they did not let him alone he was going to kill them both, were clearly admissible, as the court held.
The witness Matthews, having testified that the defendant’s character or reputation was good, was asked by the solicitor, “After this case came up, didn’t you hear about him having beat his old grandfather?” ■which question was objected to, and the objection overruled. Upon this question, it is the opinion of the writer that in this the court erred. While, as above shown, particular questions may be asked of character witnesses, in order to test the accuracy of their testimony, and considerable latitude has been allowed along that line, yet it is only the character which the defendant has borne up to the time of the commission of the offense which can be inquired into. Otherwise a witness who could conscientiously bear testimony to the good character of the defendant up to the time of the commission of the offense might be liable to have his testimony to some extent discredited by the rumors that are liable to spring up when a man is accused of a crime, or even by those which have been manufactured for the very purpose of breaking the effect of the
Dissenting Opinion
(dissenting.)—The judgment of conviction in this case is reversed on a single ground —the permission of a question by the state on the cross-examination of one of defendant’s character witnesses, and the admission of his answer as evidence.
This witness had testified that defendant’s general reputation was good, and that his reputation for peace was also good. The cross-question was: “After this case came up, didn’t you hear about him having beat his old grandfather?” The witness answered that he had. I do not deny that the fact thus elicited, relating to defendant’s reputation post litem motam, was improperly admitted even on cross-examination; nor that ordinarily it might be capable of so prejudicing defendant’s case with the jury as to render its admission reversible error. But in view of other evidence of the same fact, already and otherwise before the jury, I am satisfied, not only reasonably, but beyond any reasonable doubt, that its admission through this witness also had nothing whatever to do with the jury’s finding that defendant was guilty of murder. And, being thus satisfied, it is my plain duty) under the inhibition of section 6264 of the Code, to dissent from the judgment of reversal.
Theoretically the allowance of this question and answer may have operated in two ways: (1) To weaken the effect of the Avitness’ testimony that defendant’s reputation Avas good; and (2) to excite prejudice against defendant himself, if the jury should believe as true the report that he had beaten his grandfather.
1. Eleven Avitnesses for defendant testified to his good general reputation, and nine of them to his good reputation for peace.. It is hardly conceivable that the fact that the Avitness Matthews heard of defendant’s beating his grandfather, after this case arose, could
2. It may, nevertheless, have tended to the injury of the defendant, if the jury credited the report, since all men are likely to condemn the beating of one’s grandfather as vicious and unnatural; and, if this were all that the record showed in this regard, I would concur in the reversal. But it is not all. The state’s witness George Broaden testified to the follmving conversation between himself and defendant on the night before defendant killed his father: Defendant: “Uncle George, I came mighty near getting into lifetime trouble.” Witness: “What, Lus?” Defendant: “Well, the old man — grandpa’s mule, he fastened up in my lot, and he went to turn it out, and I whipped him, and I throw-ed a bridle over his head and pulled him to me. Yes.) sir, the old man; and he hollered for papa, and lie run up there, and I run to get my gun and aimed to kill them both there together; but my wife wouldn’t let me come out.” This testimony went to the jury, and was before them when they made up their verdict. Moreover, when defendant testified for himself, he specifically referred to this statement by Broaden, and, though he denied saying that he aimed to kill them both, or anything like that, he did not deny his narrative as to whipping his grandfather. In the face of all this, I think my Brethren are overrefining when they impute to a merely collateral rumor an injurious result distinct from or greater than that produced by the concrete fact delivered to the jury ás above set forth.
I am convinced the erroneous ruling complained of did not contribute in the slightest degree to that result; and hence I am constrained to this dissent.
Rehearing
ON REHEARING.
There was no error in that part of the oral charge of the court recited in the first exception. It is not liable to the criticism suggested, that it excludes from consideration all evidence save that introduced by the defendant in rebuttal of the presumption of malice, as the presumption is stated to exist only “provided the killing is shown to have been without legal justification or excuse.”
There was no error in that part of the oral charge recited in the second exception. — Code of 1907, § 7090; Clarke v. State, 117 Ala. 1, 8, 23 South. 671, 67 Am. St. Rep. 157; Parnell v. State, 129 Ala. 7, 15, 16, 29 South. 860; Lewis v. State, 96 Ala. 6, 10, 11 South. 259, 38 Am. St. Rep. 75; Cates v. State, 50 Ala. 166, 168; Hampton v. State, 45 Ala. 82, 84.
There is no merit in the contention that the venue was not proved. The witness William Gibson states that “he Avas killed in this county and state.” As the case was tried at Tuscumbia, the county seat of Colbert county, the testimony of this Avitness cannot mean anything but that the killing was in Colbert county.
The judgment of the court is reversed, and the cause remanded.
Reversed and remanded,
