Bigham v. State

• Decision Date: 15 May 1919
• Docket Number: 6 Div. 875
• Citation: 203 Ala. 162,82 So. 192
• Parties: BIGHAM v. STATE.
• Court: Alabama Supreme Court

82 So. 192

203 Ala. 162

BIGHAM v. STATE.

6 Div. 875

Supreme Court of Alabama

May 15, 1919

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Dock Bigham was convicted of murder in the first degree, and he appeals. Affirmed.

F.F Windham, of Tuscaloosa, for appellant.

J.Q Smith, Atty. Gen., and Horace Wilkinson, Asst. Atty. Gen., for the State.

THOMAS J.

The defendant was convicted of murder in the first degree, and his punishment fixed by the jury to suffer death. The homicide was committed by defendant at the place of operation of an illicit distillery. The deceased was the sheriff, and, at the time of his death, was of a posse of state and federal officials seeking to locate such plant and to arrest those who were operating it, one of whom was the defendant.

The due preliminary orders, of arraignment, for venire, and setting a day for defendant's trial are disclosed by the record; so also a proper verdict ascertaining defendant's guilt of murder in the first degree and fixing his punishment therefor, and judgment and sentence as required by law.

The several degrees of a felonious homicide and the required elements of self-defense--defendant's plea in justification of his act in killing deceased--were defined by the court in the oral charge (Hill v. State, 194 Ala. 11, 69 So. 941), and all of defendant's requested written charges were given. The jury, under the indictment charging murder in the first degree, ascertained by their verdict, and so declared, that the defendant was guilty of murder in the first degree and fixed his punishment at death. Code, § 7087; Howerton v. State, 191 Ala. 13, 67 So. 979.

We have examined the record, and considered all questions apparent on the record or reserved by bill of exceptions. Code, § 6264; Howerton v. State, supra; Johnson v. State, 81 So. 820; Hardley v. State, 79 So. 362.

On the trial several exceptions were reserved to the admission and rejection of evidence. It would subserve no good purpose to discuss exceptions which are patently without merit.

The state introduced as a witness one Robertson, who testified that he went in company with the deceased, Watts, and others to the place where the homicide occurred, and that he did not know defendant was one of the parties operating the still. He described the locus in quo, stating that he was instructed by Watts to pursue a man who was fleeing therefrom, and that in the pursuit he (witness) fired his gun two or three times; that after he fired, hearing "several shots down in the hollow to where the still was," he turned and went to Watts, and found him in a stooping position, "like a man sinking," or leaning over toward a little poplar tree; that when witness looked "up the hollow, I [he] saw a gun leveled" on him, which was fired, striking him in the shoulder. Witness further testified that later he repaired to the scene of the homicide, examined "the tree carefully and saw buckshot holes in it"; that he went to the still in the direction of where these buckshot holes were in the tree, and they were right in line with the still; that there were twigs and bushes between the still and the tree, and they were cut by bullets; that the twigs and bushes were on a direct line between the still furnace and the tree, between the top of the still furnace and the tree; that it was "the same tree Mr. Watts was hunkered up against." Brindley v. State, 193 Ala. 43, 45, 46, 69 So. 536, Ann.Cas.1916E, 177.

On cross-examination witness testified that he shot two or three times in the direction of the man coming across the field, and that at that instant he heard shooting "in the hollow," but could not say how many shots there were, stating his best judgment to be three or four shots; that the shooting was from a high-powered gun with a bigger explosion than a pistol. Counsel for defendant propounded to witness the question, "Didn't you have a conversation, shortly after this occurrence with Mr. Henry King and detail to him what took place and the number of shots that were fired, and so forth, and didn't you tell him the same thing?" The witness replied that he did not remember talking with Mr. King, "unless you could refer me"; would not say that he did not have such a conversation; supposed that he had talked with the party, but didn't remember any time. Witness was then asked, "In that conversation you say you had with him did you detail to him or outline what happened?" and answered, "Could not say; I may have had a talk with Mr. King shortly after this happened, but don't remember, and don't remember detailing what happened or the number of shots fired." The foregoing was without objection. Counsel for defendant thereupon asked the witness, "Did you, in the city of Tuscaloosa, shortly after this occurrence up there in which Mr. Watts was killed, have a conversation on the afternoon of the day that Mr. Watts was killed, or shortly thereafter, did you have a conversation with Mr. Henry King detailing to him the number of shots that were fired?" The solicitor objected to the question on the ground that it was irrelevant and immaterial; that the predicate was not in proper form; and that the same question had already been propounded to the witness and answered by him. The court stated that substantially the same question had been asked and answered; that this was all right as a preliminary question, but not in proper form for predicate upon which to contradict witness; that, if it was asked merely as a preliminary question, it was permissible, but, if it was intended as the predicate upon which to contradict witness, it was not in proper form. To this ruling the defendant then and there duly and legally excepted.

The liability of a witness to be contradicted may not be avoided merely because he says he does not remember the statements about which he is interrogated or that he "does not remember whether he said so or not." Payne v. State, 60 Ala. 80; Brown v. State, 79 Ala. 61; Henson v. State, 120 Ala. 316, 25 So. 23; Crowley v. Page, Car. & P., 789, 791. In order to impeach a witness by proving his contradictory statements, a proper predicate is required. In People's Shoe Co. v. Skally, 196 Ala. 349, 355, 71 So. 719, 721, Mr. Justice Mayfield said:

"In order to impeach a witness by contradictory statements, a predicate is required to prevent surprise and give the witness an opportunity to explain. If the attention of the witness is called to the time and place, circumstances and persons involved, and the statements made, the rule is satisfied. It does not require a perfect precision as to either. Southern Railway Co. v. Williams, 113 Ala. 620, 21 So. 328. See Carlisle v. Hunley, Ex'x, 15 Ala. 623; Lewis v. Post, 1 Ala. 65; State v. Marler, 2 Ala. 43, 36 Am.Dec. 398; Powell v. State, 19 Ala. 577; Nelson v. Iverson, 24 Ala. 9, 60 Am.Dec. 442."

In effect, this is the rule long obtaining in English and American courts, and announced by Baron Parke in Crowley v. Page, supra; 2 Phillips on Ev. (3d Ed.) c. 9, § 3, pp. 434, 435. The text to 1 Greenleaf on Evidence (16th Ed.) § 462, is:

"It is not enough to ask him the general question whether he has ever said so and so, nor whether he has always told the same story, because it may frequently happen that upon the general question he may not remember whether he has so said; whereas, when his attention is challenged to particular circumstances and occasions, he may recollect and explain what he has formerly said. This course of proceeding is considered indispensable, from a sense of justice to the witness; for, as the direct tendency of the evidence is to impeach his veracity, common justice requires that, by first calling his attention to the subject, he should have an opportunity to recollect the facts, and, if necessary, to correct the statement already given, as well as by a re-examination to explain the nature, circumstances, meaning, and design of what he is proved elsewhere to have said."

On the authority of Southern Railway Co. v. Williams, 113 Ala. 620, 21 So. 328, the author further says:

"The inquiry of the witness to be discredited must specify, it is usually said, the time, place, and person (addressee) of the supposed inconsistent statement; but the fixing of this specified form is to be deprecated, for it leads to innumerable petty technicalities; in principle and in policy, the inquiry need merely state enough fairly to recall the statement to the witness' mind if he has made it."

In Hill v. State, 194 Ala. 11, 21, 69 So. 941, 945, it is said that--

"The rule is not ironclad; that it does not require perfect precision as to either time, place, persons present, or the statement made. The predicate is sufficient when it is clear that the witness is not taken by surprise, and is afforded ample opportunity to make any explanation desired, and is sufficient to authorize proof of contradictory statements. 2 Brick.Dig. 548." Ex parte Phillips, 188 Ala. 57, 59, 66 So. 3.

The predicate sought to be laid for impeachment of Robertson by Mr. Henry King did not comply with the rule, since by reference to the examination of the witness, it was not clear that he was not being taken by surprise, for the witness said to the interrogator, "I don't remember, unless you could refer me." The patent defect of the predicate however, was that it failed to...