Beaird v. State

• Citation: 121 So. 38,219 Ala. 46
• Decision Date: 21 March 1929
• Docket Number: 7 Div. 722.
• Parties: BEAIRD v. STATE.
• Court: Supreme Court of Alabama

121 So. 38

219 Ala. 46

BEAIRD v. STATE.

7 Div. 722.

Supreme Court of Alabama

March 21, 1929

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Homer Beaird was convicted of murder in the second degree, and he appeals. Affirmed.

See also, 116 So. 367.

Street Bradford & Street, of Guntersville, for appellant.

Charlie C. McCall, Atty. Gen., and W. M. Rayburn, Merwin T. Koonce, and J. W. Brassell, Asst. Attys. Gen., for the State.

FOSTER J.

The witnesses having been put under the rule, it was within the discretion of the court to permit the bailiff of the court to remain in the courtroom, and then allow him to testify as a witness. Riley v. State, 88 Ala. 193, 7 So. 149; Barnes v. State, 88 Ala. 204, 7 So. 38, 16 Am. St. Rep. 48; Roberts v. State, 122 Ala. 47, 25 So. 238.

George Duffy was examined as a witness on a former trial of this case, and his testimony given on that trial was admitted in evidence over the objection of defendant on the ground that it was not shown that he was permanently out of the state. The evidence in that connection was by his father, and showed that the absent witness was then 19 years old, and lived in Attalla until about a year before, when he "moved" to Carrollton, Ga., where he "now" (then) "lives"; that he is farming in Carrollton with his uncle where he made a crop that year; that he came back to Attalla in the summer and stayed until he had to gather his crop; "that he is now in Carrollton; that is where he lives"; that his father lives in Attalla. This was all the evidence on that subject. There have been many decisions of this court on the admissibility of such evidence. The case of Hines v. Miniard, 208 Ala. 176, 94 So. 302, apparently collates them all. In that case the evidence tending to show permanency was not so strong as in the instant case. The rule on that subject is stated as follows in Thompson v. State, 106 Ala. 67, 17 So. 512: "That he has left the state permanently, or for such an indefinite time that his return is *** uncertain, it is admissible to prove the substance of the testimony he gave formerly." When the father of the witness testified that the latter had "moved" to Carrollton, Ga., and then "lived" there, he used words which in common parlance indicate one's domicile, and permanent and indefinite residence, and we think a fair inference was that the father had given his consent, as he expressed no dissent, and that the return of the witness was "contingent, uncertain or conjectural," and due to his "permanent or indefinite absence from the jurisdiction of the court," his former evidence was admissible, and the trial court correctly ruled in that respect.

Evidence offered by defendant that there was a high degree of excitement in the community after the killing was not admissible to shed light on the incriminatory statements made by defendant; there being a sufficient predicate for their admission, and no evidence conflicting with the predicate.

Early in the morning, just before the homicide, defendant and Ras Latham drove up in the latter's car, as he testified, and defendant went in a café, and witness remained in the car, and blew for him. Ingram, deceased officer, went up to the car and arrested Latham (he being drunk), who got in the officer's car, and they drove off; defendant had come out, cranked up Latham's car, and drove ahead of them in it. The court permitted Latham to testify that when the officer came up, there was whisky in the Latham car, in which Latham was seated, and out of which defendant had recently stepped. The evidence further tended to show that the deceased officer with Latham in his car overtook defendant, made him get in the officer's car, and the three drove toward the city prison, with defendant and Latham on the back seat, and before reaching the prison defendant shot and killed the officer who was in the front seat, driving the car, and doing nothing else. That whisky was in the Latham car was a part of the circumstances leading to the killing and was admissible, and not objectionable as charging the commission of another distinct crime.

Defendant offered to prove by this witness that the latter went to Alabama City the night before the killing and procured some liquor. Many witnesses, including Latham himself, testified to his having liquor, and drinking heavily that night. It was immaterial where he procured it. There was therefore no error committed by the court in this ruling. Defendant offered to prove the details of Latham's conduct the night of the killing at different places, having no connection with or leading up to the killing to show how drunk he was. But the fact that Latham was very drunk was admitted by him and not denied by any one. The details of his conduct were not necessary to prove an admitted fact. The court did not commit error in this respect.

Some objections were made to the argument of the solicitor and prosecuting counsel. One remark of the solicitor was as follows: "Mrs. Ingram [wife of deceased] had as much right to enjoy the society of her husband as any member of this jury to enjoy the society of his family." At this time Mrs. Ingram and several members of her family were sitting in plain view of the jury. The court overruled this objection. The subject of proper arguments by counsel is an important one, and involves much difficulty for appellate courts in reviewing the rulings of trial courts. It was approached and considered with a realization of such difficulty by Judge Stone in writing the opinion in Cross v. State, 68 Ala. 476. In that opinion he stated many applicable principles in this connection, not necessary here to repeat. Trial courts are largely the judges of the extent to which counsel may go in arousing sentiments of sympathy on the part of the jury. The widow had the right to be present, and was doubtless greatly affected by the scene, all

within the observation of the jury. There does not appear to have been anything else in the argument tending to arouse their feelings. Neither the motion for a new trial, nor the record elsewhere, discloses any serious prejudicial atmosphere incident to the trial. In 1 Thompson on Trials, p. 835,§ 981, we read: "Great latitude is allowed in appealing to the sympathy of the jury in the arguments of counsel. That, and the widow in tears, are a kind of stage performance which courts cannot very well, perhaps ought not to, attempt to control. *** Haranguing the jury on irrelevant matters not necessarily prejudicial, such as the fact that the defendant had a mother only fifteen miles away, that she had abandoned him, that she was not at the trial to share his troubles,-has been held no ground for new trial." Many other applicable references are made by this author. The court must control the trial so that adverse sentiments shall not be so prominent as to create prejudice against defendant, and this court should review such rulings with the presumptions all in favor of the action of the trial court. B'ham, R. L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; Olden v. State, 176 Ala. 6, 58 So. 307; Dollar v. State, 99 Ala. 236, 13 So. 575; B'ham Elec. Co. v. Cleveland, 216 Ala. 455, 113 So. 403. Our judgment is that the court did not err in connection with this ruling.

The prosecuting attorney in argument undertook to state the substance of the testimony of a witness detailing defendant's statement respecting his conduct at the time of the homicide. He did not correctly quote such evidence; in fact, quoted it directly contrary to what the witness said. Defendant objected to the statement made by the attorney, and moved to exclude it, and asked that reference be made to the stenographer's notes to see what the evidence was. The court overruled the objection and request, "and said the jury would remember what the testimony was on that point." Exception was...