Gregory v. State

• Decision Date: 16 June 1904
• Parties: GREGORY v. STATE.
• Court: Alabama Supreme Court

37 So. 259

140 Ala. 16

GREGORY v. STATE.

Supreme Court of Alabama

June 16, 1904

Appeal from Circuit Court, Cullman County; Osceola Kyle, Judge.

Millard M. Gregory was convicted of the murder of Bill Mann, and appeals. Reversed.

Before entering upon the trial, the defendant moved the court to quash the special venire in the case upon the ground that one E. L. Garner, who was and is a bona fide citizen householder, and freeholder in the county of Cullman, was drawn and ordered summoned as a juror on said venire, but one T. J. Garner was summoned as a juror in his stead, and said E. L. Garner has not been summoned as a juror; that the name of E. L. Garner was on the list of the jurors served upon the defendant as a member of the venire from which to choose the jury to try his case. Upon the hearing of this motion it was shown that the facts averred therein were true. The court overruled the motion, and to this ruling the defendant duly excepted.

On the trial of the case it was shown that the killing of the deceased, Bill Mann, occurred in the public road, just a short distance from the defendant's house; that the deceased and his son, Henry Mann, were riding along the road in a buggy, when the defendant came out of his yard, and engaged in conversation with the deceased, which resulted in a quarrel, and upon the deceased getting out of his buggy the defendant shot at him several times, and inflicted several wounds, from the effects of which the said Bill Mann died that when the defendant came up to where the deceased was in his buggy he asked him to make his son stop throwing rocks at the house of the defendant, and that the difficulty which followed arose from a dispute between the deceased and the defendant about the deceased's son having thrown rocks on the defendant's house. The evidence for the state tended to show that as the deceased and his son were passing along the public road in their buggy in front of the defendant's house the defendant hailed the deceased, and told him to stop, and upon going up to him he took the deceased to task about the deceased's son throwing rocks at the defendant's house, and told the deceased to get out of his buggy, and they would settle it, and that just as the deceased got out of his buggy the defendant fired upon him; that the deceased was not armed, and had made no hostile demonstrations towards the defendant. The evidence for the defendant tended to show that during a quarrel between him and the deceased the deceased cursed him, and when he got out of his buggy he started towards the defendant in an angry manner, and threw his hand to his pocket as if to draw a weapon, and that thereupon the defendant fired upon him; that the deceased shot at the defendant twice. Lora Gregory, the daughter of the defendant, as a witness in his behalf testified that she saw the difficulty; that the deceased fired at the defendant; and that just as he fell he threw his pistol over into the field. The defendant also testified to this fact. During the examination of Henry Mann as a witness for the state he testified that he was a son of the deceased and was with the deceased at the time of the difficulty between him and the defendant. During his examination he was asked by the defendant the following question: "Had you been throwing rocks that day?" The state objected to this question, the court sustained the objection, and to this ruling the defendant duly excepted. The defendant also asked said witness the following questions: "Did your father have a jug of whisky at home that day?" "Did he carry a jug of whisky home that day?" "Did he leave the jug at home when he left?" The state separately objected to each of these questions, the court sustained each of such objections, and to each of these rulings the defendant separately excepted. Dr. R. H. Baird was examined as a witness for the state, and testified that he was a practicing physician, and was called to attend Bill Mann after he was shot, and that he died from the wounds inflicted, and that he gave to him some whisky as a stimulant. On the cross-examination of the witness Dr. Baird he was asked by the defendant the following question "Did you not discover evidence of whisky having been taken by deceased before you gave him whisky?" The state objected to this question, the court sustained the objection, and the defendant duly excepted. Sam Patillo was introduced as a witness for the state, and testified that he knew the deceased, Bill Mann, in his lifetime; that he saw him 30 minutes after he was shot, and saw him several times afterwards before he died; that the next morning after he was shot he had a conversation with the deceased, in which the latter said, "He got me." "I am satisfied that one of these two holes [[[referring to shot between the shoulder and in the groin] will kill me." "If it was not for those two places, I could get well." This witness further testified that the deceased said repeatedly that he was satisfied that one of the two wounds referred to would kill him. The defendant objected to this witness testifying to the several statements made by the deceased upon the ground that such testimony was incompetent, and that the statements of the deceased were not made under a sense of impending dissolution. The court overruled the objections, and to these rulings the defendant duly excepted. Thereupon the witness was asked to state what the deceased said about the difficulty in which he was shot. The defendant objected to his testifying to statements of the deceased upon the ground that they were irrelevant, incompetent, and were not shown to be dying declarations of the deceased. The court overruled the objection, and the defendant duly excepted. The witness then testified that the deceased told him that while he (deceased) was passing by the defendant's house on the public road the defendant ran up, and asked him why he did not control his children, and that the defendant told him that he had stood it as long as he could, and then told him to get out of his buggy, and that just as the deceased was about to get out of his buggy Gregory shot him; that when the defendant first shot at him the deceased knocked the pistol up, and the ball glanced his head and "kind of addled him." The defendant moved to exclude the testimony as to the statements made by the deceased upon the ground that it was not shown that they were dying declarations, and duly excepted to the court overruling his motion. Walter McConnell, a witness for the state, testified that about three-quarters of an hour after the deceased was shot he (the witness) had a conversation with him, and that the deceased stated to him in said conversation that: "It's only a matter of time. I am going to die. It's only a matter of time. I am dead from here down [pointing to his waist] now." The defendant objected to these statements, because it was not shown to be the dying declarations of deceased, and made under a sense of impending dissolution. The court overruled the objection, and the defendant duly excepted. The witness then testified that he asked the deceased how the difficulty occurred, and testified that the deceased stated to him that after the defendant came up to him, while he was in his buggy on the public road, the defendant told him that his children had been rocking his house; that the deceased said he did not believe his children had done so; and that thereupon the defendant stated that he was going to settle it now, and drew a revolver, and began shooting. The defendant moved to exclude the testimony of this witness McConnell as to the statements made by the deceased upon the ground that they were not shown to be dying declarations. The court overruled the motion, and to this ruling the defendant duly excepted. The defendant introduced in evidence the showing of several absent witnesses, among whom were one Luther Baker, Boyd Gregory, and Dr. W. W. Wharton. It was recited in the showing prepared for Luther Baker and Boyd Gregory that if they were present they would testify that the deceased had told them that he and others were going to white-cap the defendant, and expected to whip him or kill him, and that they each told the defendant of this before the deceased was shot by the would testify that he attended the deceased during the time he was suffering from the wounds from which he died; that the deceased, after such shooting, and when he was conscious, stated to the witness Wharton that, "If Gregory's pistol had not been a self-acting pistol, he (Mann) would have gotten Gregory first;" and that the deceased stated to the witness that he did not expect to die from the wounds inflicted. The state objected to the portion of the testimony of the witness Wharton which is stated above, and moved the court to exclude it. The court sustained the motion, refused to allow such portion of the testimony to go to the jury, and to this ruling the defendant duly excepted. During the examination of the defendant as a witness, and after he had testified to the circumstances of the killing, he was asked by his attorney the following question: "Why did you have a pistol?" The state objected to this question, the court sustained the objection, and the defendant duly excepted. In rebuttal the state introduced three witnesses, who each testified that they knew Luther Baker, the witness whose showing had been introduced by the defendant, and knew the general character of said Baker in the neighborhood in which he lived, and that his character was bad, and that none of said witnesses would believe said Baker on oath. The defendant separately objected to the introduction of the testimony of these witnesses upon the ground that the showing of the witness Baker could not be impeached in...