Allsup v. State

• Decision Date: 01 August 1916
• Docket Number: 6 Div. 878
• Parties: ALLSUP v. STATE.
• Court: Alabama Court of Appeals

72 So. 599

15 Ala.App. 121

ALLSUP v. STATE.

6 Div. 878

Court of Appeals of Alabama

August 1, 1916

Appeal from Circuit Court, Marion County; C.P. Almon, Judge.

Frank Allsup, alias Frank Alsop, was convicted of murder in the second degree, and he appeals. Affirmed.

W.L. Martin, Atty. Gen., and P.W. Turner, Asst Atty. Gen., for the State.

BROWN J.

The defendant was indicted for killing Less Rape, the indictment charging murder in the first degree, and was convicted of murder in the second degree and sentenced for a term of ten years. The evidence shows that, at the same time and in the same difficulty that Rape was shot and killed, the defendant also shot and mortally wounded one Clay, who died from the wounds inflicted upon him the following day. The state's evidence shows that at the time of the shooting the state's witness John Davis was present and witnessed the difficulty between defendant Allsup and Clay, and that within five minutes after the shooting the defendant came up to where the witness was standing, which was within 30 yards of the place of the difficulty, and witness said: "Frank you have played h_____l. You have killed both of those boys"--and defendant said: "I do not give a d_____n. Let them die." While the defendant's declaration was not a part of the res gestae, it was admissible as a quasi confession or declaration against interest, and was shown to have been prima facie voluntary. The defendant at the time was under no sort of constraint, and was not in the presence of a person in authority; and his statement tended to illustrate and give color to his conduct. Stone v. State, 105 Ala. 60 17 So. 114; Poe v. State, 155 Ala. 31, 46 So. 521. The rule now is:

"While, to authorize this kind of declarations as evidence against a party in a criminal prosecution, it is the duty of the trial court to ascertain that they were freely and voluntarily made, still, on appeal, it will be presumed that the trial court properly performed this duty before they were admitted in evidence, unless the record affirmatively shows that the court did not do so." Whatley v. State, 144 Ala. 68, 39 So. 1014.

Otherwise stated, the burden is on the state, when offering the evidence in the trial court, to show that the confession is voluntary and admissible; and on appeal the burden is on the defendant to affirmatively show that the confession was received in evidence without showing that it was voluntary.

Evidence as to the particulars of the difficulty between the defendant and deceased at Bass' house some hours before the difficulty was not admissible, and all such testimony was properly rejected on the objection of the solicitor. Ella Smith v. State (Sup.) 72 So. 316; Jackson v. State, 177 Ala. 15, 59 So. 171; Bluett v. State, 151 Ala. 41, 44 So. 84; Robinson v. State, 155 Ala. 67, 45 So. 916.

The fact that the witness Davis and some of his friends were drinking during the morning before the difficulty over at the house of Bass was not material to the case on trial, and the court properly sustained the solicitor's objections to such questions.

The evidence as to the location of the body of Rape when Vickery and others reached the scene of the killing, and that Vickery and Edmonds assisted in moving it, and its condition at that time, was relevant in connection with the testimony of Vickery and Edmonds as to the map of the grounds where the killing occurred, as it tended to show the knowledge of the witness as to the situation of the deceased at the time he was shot.

The witness Gambill testified that he took a written statement under oath from the witness Davis with reference to the killing on the next Sunday after the killing; that the statement was written as Davis recited the facts, and read to him after it was completed, and he signed it. On this showing, the paper was well within the rule authorizing the witness to refer to a memorandum or writing for the purpose of refreshing his recollection. Hitt Lbr. Co. v. McCormack, 68 So. 696; B.R.L. & P. Co. v. Seaborn, 168 Ala. 658, 53 So. 243.

Yet the paper itself was offered by the defendant and admitted in evidence as evidence of what Davis stated, and injury from the ruling of the court denying the witness the right to refer to the paper and refresh his recollection was thereby averted. The only purpose of the questions...