15 So. 722 (Ala. 1894), State v. Tally

Citation15 So. 722, 102 Ala. 25
Opinion JudgeMcCLELLAN, J.
AttorneyWm. L. Martin, Atty. Gen., and R. W. Walker, for the State. D. Shelby, Lusk & Bell, George C. Hunt, and Amos Goodhue, for respondent.
Judge PanelHEAD, J. (dissenting).
Case DateAugust 09, 1894
CourtSupreme Court of Alabama

Page 722

15 So. 722 (Ala. 1894)

102 Ala. 25




Supreme Court of Alabama

August 9, 1894

Impeachment proceeding against John B. Tally, judge of the ninth judicial circuit of Alabama, commenced by an information filed on the part of the state by the attorney general, founded upon the report of the grand jury of Jackson county. Judgment finding respondent guilty, and deposing him from office.

Page 723

Wm. L. Martin, Atty. Gen., and R. W. Walker, for the State.

Wm. Richardson, D.

Page 724

D. Shelby, Lusk & Bell, George C. Hunt, and Amos Goodhue, for respondent.


The evidence was taken ore tenus in this case. There were many witnesses. Much difficulty and delay in securing their attendance at Montgomery were apprehended. To facilitate the hearing of the case, and to subserve the convenience and necessities of the witnesses, the judges of this court, at the request and in accordance with the agreement of the respondent and the state, consented to take the evidence and hear the arguments of counsel in the cause at Huntsville, near the scene of the acts and omissions laid against the respondent in the information; and the evidence was there taken, and the arguments were there heard. This, we were and are of opinion, we might well do at the request and in accordance with the agreement referred to, in view of the control which the statute gives respondents in such cases over the manner of taking testimony. But we were not unmindful of section 3, art. 6, of the constitution, which is in this language: "The supreme court shall be held at the seat of government, but if that shall become dangerous from any cause, it may adjourn to a different place." And we were careful, while sitting at Huntsville as individual members of the court, and not as the court itself, to avoid the attempted exercise of all judicial power. Hence it is that we made no rulings as to the admissibility of testimony except of a tentative and advisory nature, and hence it is also that much incompetent testimony was received, subject to objections noted at the time and is now to be stricken out and excluded, either expressly or by tacitly disregarding it in reaching the conclusions we shall announce. This course, under the circumstances, the triors of the facts and the judges of the competency of proposed testimony being the same, and under a necessity, for the most part, to know what the offered testimony is before passing upon its admissibility, whether the ruling is to be presently or subsequently made, involved no prejudice to either party, and, we believe, facilitated the hearing in this instance.

Briefly stated, the information in this case contains two charges against John B. Tally, as judge of the ninth judicial circuit. The first is willful neglect of duty while in office, in that, knowing the intent of Robert, John, James, and Walter Skelton to take the life of R. C. Ross, and having the opportunity to intervene in his official capacity, to prevent the execution of that intent, he willfully failed and neglected to do so. The second count charges complicity on the part of Tally in the murder of Ross by the hands of said Skeltons. Tally was a brother-in-law to all of the Skeltons named, except John, having married their sister, who was a cousin to John. The grievance they had against Ross lay in the fact that the latter had seduced, or been criminally intimate with, a sister of three of them and of Mrs. Tally. This abstract fact was, in our opinion, competent evidence in this case against Tally, as tending to connect him with the motive which actuated the Skeltons to the killing of Ross, and the fact appears in this case by evidence to which no objection was interposed. Much evidence on this subject, including several letters written by Ross to Miss Skelton, was offered by the respondent, objected to by the state, and received subject to the objection because of the circumstances, to which we have adverted, under which the evidence was taken. All this must now yield to the objection noted at the time, and be excluded from the case. It was proved that both the Skeltons and Tally had full knowledge of the liaison between Ross and Miss Skelton-had had possession of and read all the implicatory letters from him to her-long before the killing of Ross. Had they, immediately upon the receipt of these letters and upon coming, in this or other way, to a knowledge of Ross' misconduct towards her, been moved, by the tumult of passion which the law holds such intelligence sufficient to provoke and engender, to take the life of Ross, and had taken his life while under the actual dominion of this overmastering passion, before cooling time had elapsed, all this evidence would have been competent, as negativing the premeditation and malice which are essential elements of murder, and thereby reducing the grade of their offense to manslaughter. But the amplest cooling time had elapsed. If their passion continued, it was without justification of law. And whether, as a matter of fact, life was taken in a passion so continuing, or not, the offense of the Skeltons and of Tally, if he participated in the homicide, was and could be in no wise, and to no extent or degree, justified, mitigated, or extenuated by the fact of Ross' relation with their sister; and they are each and all guilty or not of murder as the other and only evidence in the case wholly apart from and exclusive of the relations of Ross and Miss Skelton may or may not satisfy, beyond a reasonable doubt, minds charged with the investigation that they killed, or participated in the killing of, Ross under circumstances that would have imported murder had the perpetrators been wholly without grievance, real or fancied, against him. All this testimony is therefore entirely irrelevant and immaterial to any issue that can possibly exist in this case, and it is excluded. Hooks v. State (Ala.) 13 So. 767; McNeill v. State (Ala.) 15 So. 352.

It has been many times decided by this court, and may now be considered the settled rule with us, though most of the adjudged cases in other jurisdictions hold the contrary, that a witness cannot depose to his uncommunicated intention. And upon this rule the testimony of the respondent as to the purpose and intention which actuated

Page 725

him in the sending of a certain telegram, and of the witness Huddleston that, upon receiving certain telegrams from E. H. Ross and the respondent on the morning of February 4, 1894, he "went down to the hotel to see if Mr. Ross was there,-to see if he had come there; went down to advise with him, and to see what the trouble was, and also to deliver the message,"-must now be stricken out. Wheeless v. Rhodes, 70 Ala. 419; Whizenant v. State, 71 ala. 383; Stewart v. State, 78 Ala. 436; Fonville v. State, 91 Ala. 39, 8 So. 688; Baldwin v. Walker, 91 Ala. 428, 8 So. 364; Railroad Co. v. Davis, 91 Ala. 615, 8 So. 349; Lewis v. State, 96 Ala. 6, 11 So. 259.

The conversation between the respondent and Mr. J. E. Brown, after and on the day of the homicide, was in the nature of privileged communications between attorney and client, for, though that relation was never established between those parties, what was then said by the respondent was with a view to the retainer of Mr. Brown, and is within the protection of the rule. That conversation and the circumstances under which it was had must now be excluded. Hawes v. State, 88 Ala. 37, 68, 7 So. 302.

Without discussing at present other objections to testimony which may be ruled upon in the course of this opinion, we will proceed to state and consider the evidence with reference to the guilt or innocence of the respondent of the charges brought against him by the information; premising that we recognize the rule of conviction beyond a reasonable doubt as applicable to this case, and that our minds must be convinced to that degree of the guilt of the respondent before we can adjudge him guilty as charged.

Among the facts which the evidence establishes without conflict, direct or inferential, in this case, are the following: About January 6, 1894, Ross left his house in Scottsboro surreptitiously under and because of an apprehension that his life was in imminent peril at the hands of the Skeltons. He remained away from Scottsboro under this apprehension until Tuesday night, January 30th, when he returned on account of the illness of his wife. From that time until Sunday, February 4th, he remained in Scottsboro, secluded in his house. About 6 o'clock on that Sunday morning, just as the train passed Scottsboro going to Stevenson, and beyond there to Chattanooga, Ross left Scottsboro, in a hack, for Stevenson, 18 miles distant, intending to catch a train there on another road, and go on to Chattanooga. With him were his brother-in-law, Bloodwood, a negro man. John Calloway, and the driver, one Hammons. All of the party were armed. Ross had a gun and a pistol, Bloodwood had a gun, and Calloway and Hammons each had a pistol. They arrived in Stevenson about 10:45 that morning, and driving to a point in a public road or street midway between an hotel and the passenger station of the two railroads that connect, or rather unite, there, and 30 or 40 yards from each, all the party alighted from the vehicle, except the driver, and took out their arms and baggage, the latter consisting of three valises. A person, William Tally, passing at the time from the hotel to the station, walked around the hack, which had stopped immediately in front of him, and met, shook hands, and passed the usual salutations with Ross, who had gotten out on the side next the station. Tally then turned away, and started on towards the station. Just at this juncture a shot was fired at Bloodwood from behind the depot...

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