Beech v. State

• Decision Date: 18 December 1919
• Docket Number: 1 Div. 122
• Citation: 84 So. 753,203 Ala. 529
• Parties: BEECH v. STATE.
• Court: Alabama Supreme Court

84 So. 753

203 Ala. 529

BEECH v. STATE.

1 Div. 122

Supreme Court of Alabama

December 18, 1919

Appeal from Circuit Court, Washington County; Ben D. Turner, Judge.

Demus Beech was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Appellant was jointly indicted with Quinnie and Henry Loper for the murder of one James M. Turner, Jr. A severance was demanded and appellant tried, resulting in a conviction of murder in the first degree, and punishment being fixed at life imprisonment, from which judgment of conviction he prosecutes this appeal.

The evidence tended to show that deceased was shot on the morning of March 7, 1918, between sunrise and 9 o'clock, and that his body was found near his team by the road in the woods about a mile and a half from his home. Quinnie and Henry Loper were brothers. Appellant married their sister, and at the time of the killing was living with his mother-in-law where Quinnie Loper, who was unmarried, also lived. The theory of the state is that the killing of deceased was the result of a conspiracy on the part of these three; there being no positive testimony, as shown by this record, as to who did the actual firing of the gun or guns.

There was some evidence tending to show a conspiracy or concert of action at the time of the killing, as contended by the state. The state was permitted to ask the witness Ferguson, over the timely objection of the defendant, whether or not he had ever heard Quinnie and Henry Loper make any accusations against the dead man as to taking or selling sheep. Defendant objected to this question upon numerous grounds, including one that it was not made in his presence. Exception was reserved to the overruling of said objection, and witness was permitted to answer that Quinnie had made some remarks to the effect that "the Turners are taking all the sheep they can from everybody." This remark was made nearly 12 months before the killing. Defendant's motion to exclude the testimony was overruled. The state, over the objection of the defendant, was also permitted to prove by the witness Middleton that a year before the killing of deceased she heard Quinnie Loper say "that, if the Turner boys didn't stay out of the woods meddling with stock, they were going to get in trouble and bad trouble." Exception was reserved to the action of the court in overruling the motion to exclude this testimony.

Webb McAlpine & Grove, of Mobile, for appellant.

J.Q. Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

GARDNER J.

The questions reserved for consideration here relate to the admissibility of certain declarations made by Quinnie and Henry Loper, jointly indicted with appellant, but separately tried, some of which testimony appears in the foregoing statement of the case. The most damaging of these declarations appear to have been made nearly a year previous to the murder for which the defendant was on trial, and were not made in the presence or hearing of defendant. The theory upon which the admissibility of this testimony rests is...