Lambert v. State

Decision Date22 June 1922
Docket Number7 Div. 266.
Citation208 Ala. 42,93 So. 708
PartiesLAMBERT v. STATE.
CourtAlabama Supreme Court

Appeal from Circuit Court, Calhoun County; A. P. Agee, Judge.

Walter Lambert was convicted of murder in the second degree, and he appeals. Affirmed.

Chas D. Kline, of Anniston, for appellant.

Harwell G. Davis, Atty. Gen., and Merrill & Allen, of Anniston, for the State.

MILLER J.

The defendant, Walter Lambert, was indicted and tried for the offense of murder in the first degree, killing Seab Eason. He was convicted of murder in the first degree, and his punishment fixed at imprisonment in the penitentiary for life. This judgment and sentence of the court was reversed by this court. Lambert v. State, 205 Ala. 547, 88 So 847. He was tried again, was convicted by the jury of murder in the second degree, his punishment fixed at 25 years in the penitentiary, and from the judgment and sentence of the court on this verdict of the jury he prosecutes this appeal.

The evidence for the state tended to show that the defendant was guilty of murder as charged in the indictment.

The court would not permit defendant to ask his first witness this question: "Do you know Seab Eason's reputation in this community for violence and roughness?" In this there was no error. The question was premature and improper at that time There was then before the court and jury no evidence tending to show the defendant acted in self-defense and the reputation of deceased for violence and turbulence was then inadmissible. Green v. State, 143 Ala. 2, headnote 4, 39 So. 362; Smith v. State, 197 Ala. 193, headnote 4, 72 So. 316; Watson v. State, 181 Ala. 53, headnote 4, 61 So. 334.

After the examination of this witness there was evidence tending to prove that the defendant in killing Seab Eason did act in self-defense. Many witnesses for the defendant testified they knew the general character or reputation of the deceased in the community where he lived for violence and turbulence, and they answered it was bad in those respects. It was not proper for the defendant to inquire of them "if his general reputation was that he would fight without proper provocation, wasn't it?" and "Was he an awful mean man?" The court properly sustained objections of the state to such questions. The questions on direct examination must be confined to the general reputation or character of the person, and "no evidence is allowed of particular acts of good or bad conduct, either to sustain or to impeach character." Jones v. State, 76 Ala. 99, headnote 3; Moulton v. State, 88 Ala. 116, headnote 1, 6 So. 758, 6 L. R. A. 301.

"But on cross-examination there is allowed much greater latitude of interrogation as to details, this being often the only efficacious test available for the discovery of truth. To test the soundness of the witness' opinion, and elicit the data upon which it is founded, he may often be cross-examined as to particular facts affecting character." Jackson v. State, 78 Ala. 471, headnote 3.

The defendant and deceased had two or three difficulties several days, three or four days, prior to the fatal one. The court properly permitted defendant to offer evidence of the previous altercations or combats between them; but the details, merits, and particulars of them were not admissible, as none of them formed a part of the res gestæ of the fatal encounter. The court did not err in refusing to permit defendant to offer evidence tending to prove the previous difficulties were caused by defendant reporting the son-in-law of deceased for gambling in crap games. This would be going into the cause, merits, or particulars of the former quarrels or difficulties, under circumstances which the law does not permit. Smith v. State, 197 Ala. 193, headnote 2, 72 So. 316; Garrett v. State, 76 Ala. 18; Gray v. State, 63 Ala. 66.

The court properly refused to allow defendant to ask witnesses this question: "Who was the aggressor?" in the former difficulties as well as in the fatal difficulty. Who was the aggressor in the fatal difficulty was a question for the jury to answer from the detailed facts and circumstances of the case. The question called for an opinion and conclusion of the witness on particulars of the difficulty as seen by him. This invaded the province of the jury. Witnesses should detail the facts and circumstances, and the jury should form the opinion and draw the conclusion from them. The question was also improper as to the former difficulties for the additional reason it was an attempt to go into the merits of them. Jones v. Hatchett, 14 Ala. 743; 1 Greenl. Ev. § 440; Cent. of Ga. R. R. Co. v. Jones, 170 Ala. 611, 54 So. 509, 37 L. R. A. (N. S.) 588; Smith v. State, 197 Ala. 196, headnote 2, 72 So. 316; Garrett v. State, 76 Ala. 18.

The size and physical condition of the defendant at the time of the fatal difficulty were relevant and competent, and evidence thereof was before the jury; but the physical condition of and injuries received by the defendant in the former difficulties and whether the deceased was arrested by the official for it and what deceased had in his hand in the former difficulty, three or four days before, were immaterial to the real issue in the case. It was going into the merits or particulars of the former difficulties, when they formed no part of the res gestæ of the case. Smith v State, 197 Ala. 196, 72 So. 316, and other authorities supra. It is true in Watts v. State, 177 Ala. 22, 59 So. 270, the court permitted evidence "that deceased attacked defendant with scissors, accompanying the attack with a threat," on the day of the killing, to go to the jury. This was a threat, direct threat, with scissors and an attack on the day of the killing. In...

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