Thornton v. State

113 Ala. 43 | Ala. | 1896

HARALSON, J.

1. Bargaineer, the sheriff, testified, that as he was going out to the place where Williams was killed, the day following the night he was killed, he met defendant and another negro inside the corporate limits of Greenville, and that defendant looked frightened when he saiv him. To this last expression, which is italicized, the defendant objected, and excepted to the ruling of the court in admitting it. Such expressions as “she appeared to be healthy;” “the accused appeared to be mad;” that a person “was sick, had fever, or was pregnant ;” “plaintiff seemed to be suffering ;” “she was not able to return home;” “she looked bad, and the left wrist of plaintiff looked like the bone had slipped off the joint;” “that the pieces of jugs found in the debris of the burned gin house looked like they had been burned ; ’ ’ and such like expressions, have been held to be admissible as statements of what are called collective facts.-S. & N. Ala. R. R. Co. v. McLendon, 63 Ala. 266, 275; Carney v. The State, 79 Ala. 14, 17; Jenkins v. The State, 82 Ala. 28; James v. The State, 104 Ala. 20; Miller v. The State, 107 Ala. 40.

The principle upon which such opinions are admissible as evidence is very fully stated in Carney v. The State, supra, as follows: "Human emotions and human passions are not, in themselves, physical entities, susceptible of proof, as such. Like the atmosphere,-the wind, and some acknowledged forces of nature, they are seen only in the effects they produce. Pleasure, pain, joy, sorrow, peace, z’estlessness, happiness, misery, friendship, enmity, anger, are of this class. So, tenderness, sympathy, rudeness, harshness, contempt, disgust, the outcrop of emotional status, cannot, in their constitution, be made so far physical facts or entities, as to become the subject of intelligent word description. They are proved by what is called opinion evidence. Not the mere unreasoning opinion or arbitrary conclusion of the witness, but his opinion based on experience and observation of the conduct, conversation and facial expression of others, in similar emotional conditions. Facial expressions and vocal intonation are so legible, as that brutes comprehend them ; and yet human language has no terms by which they can be dissected, and explained in detail,” &c.

Again, as to the admissibility of such evidence, Mr. Wharton says : ‘ ‘The true line of distinction is this : an inference necessarily involving certain facts may be stated without the facts, the inference being an equivalent of a specification of the facts,” or a shorthand rendering of them, subject to cross-examination as to the facts on which the inference is based.-1 Whart. Law of Evidence, § 510, and authorities cited.

In McAdory v. The State, 59 Ala. 92, it was held that a witness should not be allowed to say, the prisoner “looked downcast;” in Gassenheimer v. The State, 52 Ala. 313, that it was error to allow a witness to state that the prisoner “looked excited,” and in Johnson v. The State, 17 Ala. 618, it was held to be error to allow a witness to state that the prisoner “looked serious.” These decisions, as to the admissibility of such evidence, have been departed from, as we have seen in the later decisions of this court, first above cited. There was no error in admitting the evidence objected to.

2. A witness, Hartley, for the State, testified, that two men passed him coming from the direction of Greenville, late in the night in which deceased was killed, and they were “in his best opinion,” the defendant and the deceased. He testified, before the question was asked calling for Ms opinion of their identification, that he could not be positive as to who they were, because he could not see their faces distinctly ; that he knew them both and had met them a great many times, and he noticed them carefully that night, and described the size of each. The defendant objected to this evidence, but the court admitted it; and in this there was no error.-Mitchell v. The State, 94 Ala. 68; Turner v. McFee, 61 Ala. 468; Walker v. The State, 58 Ala. 393: 1 Greenl. Ev., § 440.

3. It was shown, that a memorandum book, some time after the killing, was found at the place of the killing, which there was evidence tending to show was defendant’s book. It was shown by G. W. Searcy, witness for the State, that there was a string tied around the book when found, and there was a piece of red pencil in it, which was produced and identified by the witness as the one that was in the book when found. Another witness, Lewis Glasgow, testified, that he saw defendant in Greenville the day before the killing, at the store of one Lee ; that he bought from Lee, at that time, a dozen cedar pencils, all alike ; that he gave 'defendant one of them, just like the one found in the book. Here the witness took from his pocket a piece of red pencil, and testified that it was a piece of one of the pencils he had bought of Lee on Christmas eve, when he gave defendant one of them. It was shown, that the pencil found in the book, and the one exhibited by the witness as taken from his pocket, were alike in color and appearance, and each had “Dixon, 270” stamped on it. The court, against the objection of defendant, allowed the book and pencil to be introduced in evidence; and in this there was no error. If the book and pencil belonged to defendant, and were found at the scene of the killing, it was competent to show these facts as tending to connect defendant with the killing, as its guilty agent. The weight to be given such evidence was for the determination of the jury.-Young v. The State, 68 Ala. 574; Hodge v. The State, 97 Ala. 40.

4. There was no error in refusing to give charge No. 1 requested by defendant.-Bland v. The State, 75 Ala. 574; Banks v. The State, 72 Ala. 522.

Charge No. 3 requested by him was properly refused. Webb v. The State, 106 Ala. 52. And charges 5 and 13 have been so repeatedly condemned as improper instructions, it is unnecessary to do more than to say they were properly refused.

5. The objections taken to the verdict rendered are hypercritical. It is unmistakable, and fully responsive to the requirements of the statute. — Code of 1886, § 3789.

No error appearing in the rulings of the court below, its judgment is affirmed.

Affirmed.