Wright v. State, 72 So. 564

EVANS, J.

Aрpellant was indicted for murder, convicted of murder in the second degree, and sentenced to a term of ten years’ imprisonment. From the judgment of conviction he prosecuted this appeal.

(1) The record discloses that in addition to 48 jurors drawn and summoned to act as the regular jurors for the week beginning June 7, 1915, the trial court, on May 29, 1915, drew 7 additional names, which, together with thе 48 names, it was ordered should constitute a special venire to try appellant’s case. On June 7, 1915, appellant was arraigned, and the court set his case down for trial on the succeeding day. On June 7th the court, after hearing excuses, claims of exemption, and disqualification, excused 6 jurors, which, together with 9 jurors not answering and 1 not served, left a venire of 39. On the day of triаl (June 8th), before entering upon the trial, appellant made a motion to quash the venire, and also filed a written objeсtion, protesting against being put upon his trial, in view of the fact that the previously excused jurors had not been resummoned, and hе was deprived of the venire prescribed by statute — a minimum venire of 50. — Acts 1909, p. 319, § 32. This court, in Fowler’s Case, 8 Ala. App. 168, 63 South. 40, and Lewis’ Case, 10 Ala. App. 31, 64 South. 537, held adversely to appellant’s contention; but the Supreme Court, in Carmack's Appeal, 191 Ala. 1, 67 South. 989, held that where 26 jurors, who were on the regulаr panels for the week and also on the special venire to try a capital case, were excused upon the organization of the regular ‍‌​​‌​​‌‌‌‌​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​​​​‌‌​‌‌​​​​‌‌​‌​‍juries for the week, and not resummoned for the capital venire, thus putting the accused uрon a venire of less than 50, such action was reversible error. — See, also, Waldrop v. State, 185 Ala. 20, 64 South. 80.

(2) Numerous exceptions were reserved to the evidence. There was no error in overruling appellant’s question propounded to M. F. Parker, to-wit, “Do you help him [solicitor] strike juries in all cases that you arrest?” Witness’ custom, or what he did or what interest he manifested in other cases, was wholly аnd plainly irrelevant and immaterial.

(3) The court was not in error in allowing the solicitor to ask witness J. N. Smitherson: “I will ask you if Will Wright [appellant] made a statement to you that day at his house that Robert Foster [deceased] had stolen a suit of clothes and a рearl-handle pistol from him.”

This tended to shed light on the ‍‌​​‌​​‌‌‌‌​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​​​​‌‌​‌‌​​​​‌‌​‌​‍question of motive and intent.

(4, 5) As to assignments of error 16 and 17, relating to testimony of Will Pоwell, the bill of exceptions discloses no objections, exceptions, or rulings of court; however, the testimony was entirely proper as tending to prove motive and intent. For the same reason, it was competent for deputy sheriff Moon tо testify that he had a warrant, or warrants, for deceased sworn out by appellant. Nor was it error to permit witness Moon to say what the warrant he had for the deceased accused him of. This merely called for evidence of a collateral fact — not proof of the contents of a written instrument. — Mo bile, J. & K. C. R. R. Co. v. Hawkins, 163 Ala. 565, 51 South. 37; Griffin v. State, 129 Ala. 92, 29 South. 783; Pentecost v. State, 107 Ala. 81, 18 South. 146; Street v. Nelson, 67 Ala. 504.

(6) The questions asked witness Smithson, “Did you notice any indication of a struggle ?” and, “Did the place indicate that he had moved around any,” are not objectionable as opinions. “Under a recognized modification of the general rule against admitting in evidence the opinions of ordinary witnesses, their conclusions as to the appearance of persons, animals, or things may be proved as being in their nature not mere opinions, but descriptive of facts.” — Southern Ry. Co. v. Proctor, 3 Ala. App. 418, 57 South. 515. So witnesses have been allowed to testify that ‍‌​​‌​​‌‌‌‌​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​​​​‌‌​‌‌​​​​‌‌​‌​‍the report of a firearm sounded like a rifle (Fowler’s Case, 8 Ala. App. 171, 63 South. 40) ; a depression in the sand “loоked like where a man’s shoulder had struck the ground” (Watkins’ Case, 89 Ala. 87, 8 South. 134) ; that tracks looked like those of a person walking (Smith’s Case, 137 Ala. 22, 34 South. 396) ; and that at a certain place witness saw signs of a “scuffle” (Roberts’ Case, 122 Ala. 47, 25 South. 238). The court was nоt .in error in permitting witness ‍‌​​‌​​‌‌‌‌​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​​​​‌‌​‌‌​​​​‌‌​‌​‍Smithson to answer the questions above indicated.

(7, 8) Appellant’s counsel excepted to the cоurt’s disallowing several questions embraced in assignments 8, 9, 10, 19, 20, and 21, which sought to inquire into the friendly relations of witnesses with “the Jones boys,” who werе related to the deceased. Appellant contends that such evidence tended to show the bias of witnesses, and affected their credibility. We do not agree with this view. The fact that witnesses were supposed to be friendly with “the Jones boys,” who in turn were friendly with and related to. the deceased, is a collateral matter too remote upon which to predicate error. — Bullingtdn v. State, 13 Ala. App. 61, 69 South. 319; McAlpine v. State, 117 Ala. 93, 23 South. 130. It is competent to show the bias, favor, or hostility of a witness to one of the parties himself; but the latitude of cross-examination on collateral matters, tending to shake the credibility of a witness, is a matter addressed to the sound discretion of thе court, and without a plain abuse of discretion, the action of the trial court as to such matter will not be revised. — Cox v. State, 162 Ala. 66, 50 South. 398.

(9, 10) We are unablе to see the relevancy of the question embraced in the eighteenth assignment; its refusal was proper. The remark of ‍‌​​‌​​‌‌‌‌​‌​​‌​‌‌​‌​​​​​​‌‌‌‌​​​​‌‌​‌‌​​​​‌‌​‌​‍the solicitor (assignment 23) was not improper or prejudicial, and there was no error in overruling the motion to exclude it.

(11) The сourt will not be put in error for not having charged on second degree manslaughter. Such a charge would have been abstrаct, as there was nothing in the evidence to support such a theory. — Thomas v. State, 150 Ala. 31, 43 South. 371; Ragsdale v. State, 134 Ala. 24, 32 South. 674; Dennis v. State, 112 Ala. 64, 20 South. 925.

(12) The overruling of the motion for a new trial was free from error. It appears from the record the learned trial court gave 33 written charges requested by appellant and refused 2. One of the refused charges requested was the general affirmative charge. Its refusal was proper. The other refused charge was as follows: “The court charges the jury that if there is reasonable ground to believe from the evidence that another person than the defendant could have killed Robert Foster, then you could find the defendant not guilty.”

The charge wаs properly refused. It is too broad, and pretermits all consideration of appellant’s connection with the crimе, for non constat another person might be the perpetrator, and yet appellant not be innocent. It required explanation as written. It may be said to be abstract and speculative; all the more so from the use of the word “could.” It mаy also be subject to the criticism of being argumentative. A somewhat similar charge was condemned in Pitman v. State, 148 Ala. 612, 42 South. 993.

In view of the fact that the case must be reserved for the error first above pointed out, we have carefully reviewed all questions raised by the record proper and the bill of exceptions.

Reversed and remanded.

Case Details

Case Name: Wright v. State

Court Name: Alabama Court of Appeals

Date Published: Jun 30, 1916

Citations: 72 So. 564; 15 Ala. App. 91; 1916 Ala. App. LEXIS 115

Court Abbreviation: Ala. Ct. App.