Way v. State
155 Ala. 52
Ala.
1908
Check Treatment
DOWDELL, J.

The defendant was indicted for the murder of J. Lem Jones, was tried and convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for a term of 13 years. From the judgment of conviction the present appeal is prosecuted.

The defendant complains that errors prejudicial to him were committed on the trial in rulings of the court on evidence, and the refusal to give certain instructions to the jury requested by him in writing. The first ruling of the court complained of as error was in permitting the witness McClusky, against the defendant’s objection, to testify that the hard object which witness felt on the person of the deceased a short while before the killing was, in witness’ opinion, a pistol; the witness having already testified that, when he met Jones, the deceased, *61be put bis band on bim and felt “a bard object on bis right side on tbe inside of tbe waistband of bis breeches.” Tbe expression of opinion in this connection was nothing-more than tbe statement of witness’ judgment as to what tbe hard'object was be felt. We see no good reason why a witness may not,from having felt an object, state bis judgment of what tbe object was. Tbe witness stated that be pressed bis band against tbe object, and it seemed to bim that what be felt was tbe handle of a pistol. We think this evidence was competent, and tbe ruling of tbe court in admitting it free from error.

It was competent to show all that transpired at tbe time of tbe killing, and which occurred prior thereto leading up to and explanatory of tbe tragedy, and hence tbe evidence of tbe woman Alice Williams, at whose bouse tbe killing occurred, that some boys were knocking and kicking at tbe door and threatening to break in, etc., was relevant and admissible. It was likewise permissible to show that tbe defendant was at tbe time called by tbe name of “Will Wade,” a name other and different from bis true name. - Jones, tbe deceased, was a policeman, and, in tbe discharge of bis duties as such, was drawn to tbe place of tbe tragedy by tbe disorderly conduct of certain parties. There was evidence tending to show that one Waymond Moore fired tbe shot that killed Jones. One of tbe theories of tbe state was that there was a conspiracy on tbe part of tbe defendant and tbe said Moore to kill Jones, or a common purpose on their part to' do some unlawful act, in tbe doing of which, and as a consequence from which, followed tbe killing. On this theory, if the defendant and Moore were tbe boys who were knocking and kicking tbe door and threatening to break in, it was a circumstance to be considered by tbe jury in connection with tbe other evidence as tending to support the state’s theory. In prov*62ing a conspiracy, a circumstance or fact, when considered independently, [may have little or no probative force; but, when considered collectively with other f acts; may furnish the link to complete the chain. Hence, where a conspiracy or preconcert of action is to be shown by circumstantial evidence, in the very nature of things, the proof may sometimes take a wider range than proof in ordinary cases.

The witness Alline Gibson testified to having seen two persons, immediately after the shooting, running by the house in which the witness was, and away from' where the shooting was done, one behind the other about 15 feet. It was dark, but she saw that one was taller than the.other. She heard one exclaim to the other: “God damn it! come on!” She was then asked if she recognized the voice, and she answered that she did not. The witness was then asked by state’s attorney if she had ever heard the voice before. The question was objected to by the defendant on several grounds, one of which was that the witness had already testified that she did not recognize the voice. The court overruled the objection, and the witness answering said: “Yes, in my judgment it Avas the defendant Way’s voice.” A motion was made to exclude the answer, Avhich was overruled. In this there was no error. The witness may not have recognized the voice — that is to say, have known positively whose voice it was — yet it Avas permissible for her to testify her best judgment, having previously been with the defendant and heard him talk.

It was within the discretion of the court, when the state announced that it had finished its testimony with the exception of one Avitness, Avho Avas absent, but expected to come in later on a train, to require the defendant to proceed Avith his evidence, and to subsequently permit the state to examine such absent witness upon his coming in.

*63The defendant’s witness John Callaban, having testified, on his direct examination, that the defendant’s character Avas good, and that his character for peace and quiet was good, the witness was then asked, on cross-examination by the state, the following questions: “If a man was guilty of getting drunk and going to disreputable places and fighting, Avould that person have a good character?” “These people, in discussing the defendant’s character, would some say good things about him, and some say bad things about him?” These questions were separately objected to by the defendant. As to the second of the above questions, there can be no doubt but that the inquiry was proper, and the evidence sought was competent. The inquiry, at least, went to the accuracy of the witness’ statement of the defendant’s general character. But we cannot say the same as to the first of the tAvo questions asked above. “General character” is the same as “general reputation.” and is determined by how the person is generally regarded or esteemed in the community in which he lives. Hence, as was said in the case of Moulton v. State, 88 Ala. 118, 6 South. 758, 6 L. R. A. 301: “A Avitness to character cannot speak of particular acts, or even the course of conduct of the person inquired about, but is confined to a statement of general [reputation !in the neighborhood in which he lives.” And so, too, it was held in that case that the cross-examination of a character witness must be conducted Avithin the limits of this inquiry. The question asked was as to the particular acts and conduct, and could have had reference to no one than the defendant. It was without the rule above laid down. Nor was the question proper, or the evidence sought competent, on the suggestion made by counsel for the state, to ascertain witness’ standard of what it took to constitute good character. The answer to the suggestion is: The *64issue does not involve witness standard of good character. The issue is good or bad repute in the community in which the -pqrson lives, whose character is inquired about. In overruling the defendant’s objection to the question, the trial court committed reversible error.— Moulton v. State, 88 Ala. 116, 6 South. 758, 6 L. R. A. 301; Thomson v. State, 100 Ala. 70, 14 South. 878.

The evidence of the witness Janet Smith, as to how long she had known the defendant, how often and how long he had been visiting her house, and by what name he went, etc., was relevant and admissible on the question of identification, and no error was committed in overruling the defendant’s objections to the same.

There was no error in overruling defendant’s objections to questions asked defendant’s witness Scott, upon his cross-examination by the state, in reference to his not having communicated to state’s counsel what he (witness) knew about the evidence of the witness Taylor. This was clearly within the scope and range of a cross-examination of the witness.

It was wholly immaterial under what charge the defendant’s witness Taylor was arrested and carried to Huntsville, and the court committed no error in sustaining the state’s objection to this evidence.

The defendant sought to prove, by the witness Harry Copeland, statements made by Waymond Moore to the witness that he (Moore) shot and killed the deceased. This was purely hearsay evidence, and -was properly excluded. Nor was the record in the case of State v. Moore charged with the killing of the deceased competent in evidence.

We have now considered the exceptions reserved on the introduction of evidence in the order presented by the record. Counsel for appellant lay much stress in brief and argument on the weakness and, what they *65urge to be, tbe inconclusive nature of the state’s evidence. Wherever the evidence in its tendencies at all supports the charge made, or affords inferences to be drawn by the jury in support of the charge, the weakness of the evidence is a question for the jury, and not for the court, unless it is so palpably inconclusive as to fail to make a prima facie case.

Charge No-. 1, refused to the defendant, was not free from involvement, and calculated to confuse the jury. Moreover, every proposition of law contained in this charge the defendant got the benefit of in the subsequently given charges 8, 17, and 18 requested by the defendant.

Charge 37, requested by the defendant, is subject to the criticism that it does not hypothesize a finding by the jury of that which is postulated in the charge. It may well be that what is hypothesized, if so found by the jury, would furnish just foundation for the existence of a reasonable doubt of the defendant’s guilt. The charge, however, requires an acquittal without regard to whether the jury entertain a reasonable doubt of guilt. The charge, we think, as framed, is not free from misleading tendency.

Charge 40, requested by the defendant, was pronounced by this court good in the case of Neilson v. State, 146 Ala. 688, 40 South. 222-223, and its refusal was error. We, however, are now of the opinion that the employment of the word “promptly” in the charge might well have justified its refusal. . We are satisfied that in the Neilson Case, supra, the employment of the word “promptly” in the charge was 'overlooked.

A charge similar to charge 62, requested in this case, was held to be a proper instruction in the case of Evans v. State, 109 Ala. 11, 19 South. 535. See charge 30 in that case.

*66Charge 48, requested by the defendant, does not correctly state the law, and was properly refused. If Way aided or abetted Moore in the killing of Jones, it is not essential to Way’s guilt of murder that he should have had knowledge of the existence of malice on the part of Moore.

Charge 42, if free from any and all objection, no reversible error was committed in its refusal, since it was substantially covered by given charges 8, 17, and 18.

If the defendant aided and abetted Moore in the killing of Jones, it was not essential to the defendant’s guilt that the said Moore should have had knowledge of such aiding and abetting. Hence charges 3 and 10 were properly refused for this reason, if no other.

Charge 43 was properly refused.

Charge 33 was by this court, in the case of Bowen v. State, 140 Ala. 67-70, 37 South. 233, held a good charge, and its refusal constituted reversible error. This charge should have been given.

Charge 68% is argumentative, besides being faulty in other respects, and was therefore properly refused.

Charge 35 is argumentative, besides pointing out and giving undue prominence to particular evidence, and was properly refused. The same may be said of charge' 41.

Charges 50, 51, 52, and 53 were invasive of the province of the jury, and the court properly refused them.

Charge 65 is but an argument, and there was no error in its refusal.

While there was no direct evidence that the defendant got the pistol of the deceased, still there was evidence which left an inference of such a fact open to the jury. Consequently, charge 66 should not have been given.

We have considered the charges refused to the defendant insisted on in argument, and in the order treated of *67in brief. There are other refused charges, but they are such as are covered by given charges, or so palpably faulty as to require no mention.

The two charges, given at the request of the state, are free from fault.

For the errors pointed out, the judgment is reyersed.

Reversed and remanded.

Tyson, O. J., and Andebson and McClellan, JJ., concur.