Swinney v. State, 8 Div. 414.
| Citation | 225 Ala. 273,142 So. 562 |
| Decision Date | 02 June 1932 |
| Docket Number | 8 Div. 414. |
| Parties | SWINNEY ET AL. v. STATE. |
| Court | Supreme Court of Alabama |
Rehearing Denied June 23, 1932.
Appeal from Circuit Court, Franklin County; J. Fred Johnson, Jr. Judge.
Joe Swinney and Charlie Baggett were convicted of murder in the second degree, and they appeal.
Affirmed.
William Stell and H. H. Hamilton, both of Russellville, for appellants.
Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.
Defendants were convicted of murder in the second degree, with punishment fixed at imprisonment for twenty-five years, under indictments charging murder in the first degree, for the killing of one Tom Hill. They were separately indicted, but tried jointly by agreement entered into in open court, and with the understanding that evidence offered as applicable only to one defendant was not to be considered as affecting the other, and the jury was so explicitly instructed. The indictments were in Code form (section 4527, Code 1923) and sufficient. Billingslea v. State, 68 Ala. 486. The demurrers thereto were properly overruled.
The deceased was found dead in his pasture about one hundred and sixty-five yards from his house, on August 5, 1931, his body lying in a sink hole where a tree had been uprooted. The blows causing death were inflicted on the head, his skull being fractured in several places. There were evidences of "two places on the left hand side of his head and one on the right, and one also over his right eye." An ordinary shovel was found some twenty or more feet away on which was human hair. The state rested largely upon the testimony of one Rich who insists he was an eyewitness (some forty or fifty yards distant) to the first blow struck deceased (on Monday, August 3, 1931), and that this blow was by one Lawler with the shovel which he took from the hands of the deceased striking him in the face. Upon seeing this first blow struck, Rich states that he immediately turned and went home, and knew nothing of what happened thereafter. He did not see these defendants strike a blow, but they were standing there with Lawler, and all three were arguing with deceased who said something about a still and that he wanted them to move it, "and they were arguing about it." As to these defendants, Rich testifies, "They were arguing too." And again the witness states, "I heard Baggett and Swinney quarreling at the time Lawler was quarreling with Mr. Hill."
As explanatory of his presence at this time, Rich was permitted to testify, over defendant's objection, that about 5 o'clock of the afternoon of August 3d, Lawler came to his home and asked that he go with him to a still, and on such invitation he went with Lawler; that upon reaching the neighborhood of the house of the deceased he and Lawler met these two defendants "north of Mr. Hill's house by the edge of the field," and further states: "They didn't want me to go any farther, they stopped me; they said they would go bring some whiskey back down there; they told me to stay there and they went off *** left me down there about where I met up with them *** went upon Mr. Hill's land and I saw them talking to Mr. Hill."
It thus appears that the presence of Lawler at the house of the witness Rich, his request to accompany him, the walk to the scene of the difficulty, and the witnessing of the first blow struck, all constituted one continuous transaction, and the evidence as to what occurred at the home of witness Rich was therefore admissible as a part of the res gestæ, and the insistence of error in this respect to this ruling is without merit. 16 Corpus Juris p. 572.
Rich further states that defendant Swinney threatened to kill him if he told on him. There was other evidence of incriminatory statements by defendant Swinney, but as to defendant Baggett there was only one witness, one Homer Nolen, who gave evidence of such a character, and that related to a conversation which occurred near Baggett's house between Joe Swinney and Charlie Baggett after the state witness Rich had been arrested and put in jail. Nolen testified:
The argument against the admissibility of this evidence is based upon the insistence that it does not appear the conversation related or had reference to the murder of deceased; but we think, upon consideration of all the proof, the jury might well infer the defendants were referring to the homicide which had occurred some time before, and which had not yet been solved, and to their interest therein or connection therewith. The objection was properly overruled.
The conversation of the witness ...
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Lash v. State
...applying and accompanying the doing of the act, and from the conduct of the defendant subsequent to the criminal act. Swinney et al. v. State, 225 Ala. 273, 142 So. 562. Underhill's Crim.Ev., 4th Ed., p. 1418, § It may be further noted that when a prima facie conspiracy is established to co......
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Commonwealth Life Ins. Co. v. Harmon
...Birmingham Clay Products Co. v. White, 226 Ala. 89, 145 So. 668; Robinson v. Solomon Bros. Co., 225 Ala. 389, 143 So. 566; Swinney v. State, 225 Ala. 273, 142 So. 562; parte State ex rel. Grace, 224 Ala. 273, 139 So. 288. The judgment of the circuit court in overruling the motion for a new ......
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Lash v. State
...applying and accompanying the doing of the act, and from the conduct of the defendant subsequent to the criminal act. Swinney et al. v. State, 225 Ala. 273, 142 So. 562; Underhill's Crim. Ev., 4th Ed., p. 1418, § It may be further noted that when a prima facie conspiracy is established to c......
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Hall v. State
...limited by appropriate instructions to the jury. Vol. 6A, Alabama Digest, Criminal Law, k673(4). The appellant, as in Swinney v. State, 225 Ala. 273, 142 So. 562, when the evidence was received did not request the court to instruct the jury that the evidence as to the codefendant was not to......