Blackwell v. State

• Decision Date: 24 May 1956
• Docket Number: 2 Div. 356
• Citation: 264 Ala. 553,88 So.2d 347
• Parties: Tom BLACKWELL v. STATE.
• Court: Alabama Supreme Court

Page 347

88 So.2d 347

264 Ala. 553

Tom BLACKWELL v. STATE.

2 Div. 356.

Supreme Court of Alabama.

May 24, 1956.

Rehearing Denied June 30, 1956.

Pitts & Pitts, Selma, Beddow, Gwin & Embry and Roderick Beddow, Jr., Birmingham, for appellant.

John Patterson, Atty. Gen., and Robt. Straub and Robt. G. Kilgore, Jr., Asst. Attys. Gen., for the State.

MERRILL, Justice.

Appellant was tried under an indictment charging first degree murder, was found guilty of second degree murder and sentenced to 25 years imprisonment. His motion for a new trial was overruled and he appealed.

The evidence discloses that around 12:01 a. m. on the morning of January 1, 1955, the deceased, Clarence Chester and his brother James (also deceased) were present at the Embassy Club, located about two miles from Selma, along with a crowd of 100 or so persons including the appellant, Tom Blackwell, and his brother Mickey. James Chester and Mickey Blackwell got into a fight; the deceased and the appellant joined in a general melee which lasted some 15-25 minutes. At the conclusion of the melee, both Chesters left the club; appellant and Mickey followed a few seconds later. All of the parties had been drinking. Shortly thereafter both Chesters were observed lying on the ground in front of the club, motionless, and clasped in an embrace. Appellant and his brother, along with the witness Travis, went to appellant's car and got in. With appellant at the wheel, the car backed out of its parking place and proceeded forward toward the point where the Chesters were lying on the ground. Other cars were leaving at the time and it was raining. The left front wheel of appellant's car passed over the bodies of both Chesters, the frame of the car pinning them under it. The car was equipped with lowering blocks, the effect of which is to lower the rear end of the car. Both Chesters were dead when removed from under the car some 15 minutes later. According to Dr. Rehling, State Toxicologist, deceased died of asphyxiation caused by great force or pressure being applied to the neck and upper portion of the chest cavity which obstructed blood circulation and breathing by pressure at this point.

State witness Travis testified that when they arrived at the car from the club, appellant said, 'We will fix those bastards'; that just before they ran over the bodies, someone yelled, 'don't run over them boys'; that when the car came to a stop, someone came up to the car and said 'you ran over those boys,' at which time appellant said that was what he meant to do and if the man did not shut up the appellant would stomp his ass; that he (Travis) got out of the car, felt for the pulse of the deceased, found none, got back in the car and informed appellant that deceased was dead, and after they were transferred to the automobile of the officers, that appellant said over and over, 'we will get twenty to twenty-five years for it'. State's witness Wackerle testified that he was the person who shouted, 'stop, stop, don't run over them' when the car was about twelve feet from the deceased and he corroborated substantially the third and fourth statements testified to by Travis. The defendant denied each of these statements except that someone yelled about the time he felt his wheels hit a bump and he brought the car to a halt. He testified that he never saw the Chesters on the ground and did not know he had run over them until the car was resting on their bodies. He further testified that his brother and Travis were on the front seat with him, that he was not drunk, that he remembered everything that took place outside and that he was in charge of his faculties.

Appellant urges that the court erred in that on rebuttal, after the defendant had testified, the state called the witness Baker, who stated that he had a conversation with the defendant after his arrest. The predicate as to the voluntariness of this statement was properly laid. After the question, 'what was said in that conversation?', the defendant objected as follows:

'We object. It calls for incompetent, irrelevant, immaterial and illegal testimony; no proper predicate has been laid to authorize the witness to answer the question; no proper foundation has been laid; and the question is not asked in the language of any predicate; and it is not offered to dispute any evidence or anything testified to by the defendant; nor is it offered to impeach any witness offered in behalf of the defendant; and on the further ground if he has any statement in the nature of an admission on the part of the defendant, it should have been offered on the State's direct proof and not on redirect.'

The objection was overruled; defendant excepted and the witness testified:

'I was asking Tom, asking some several questions about particular incidents at the Embassy Club. I asked Tom if--I think my first questions were related to the fight inside the place--I asked him if he started the fight; he said, 'I don't know who started the fight; maybe I did.' I asked specific questions about things that took place outside the place; his answers were, 'I don't know. I don't remember. I was too drunk.' I asked him the specific question if he saw the man who tried to stop him before he got to the bodies. He said, 'I don't know.' I asked some other specific questions about, about the bump, if he felt the bump as he passed over the bodies. He said, 'I don't know.' I asked him the specific question who was on the front seat of the car with him. He told me, 'I don't remember.' He said he was too drunk, he couldn't remember.'

These statements attributed to the defendant were inculpatory in part and exculpatory in part, but since no effort was made to have any particular part excluded, we shall proceed to treat the answer as though it were an inculpatory admission against interest in all respects, since it was an admission against interest in some respects. The questioned testimony of Baker relative to what the defendant said regarding his being drunk and not remembering is almost identical with that of officer Tompkins in Elkins v. State, 250 Ala. 672, 35 So.2d 693, where it was held that such statement was in the nature of an inculpatory admission.

Appellant insists that Baker's testimony was inadmissible because the proper impeachment predicate was not laid to the defendant when he was on the witness stand. The established rule was restated in our recent case of Sparks v. State, 261 Ala. 2, 75 So.2d 103, 106, as follows:

'The rule is well settled that where a witness on cross-examination denies that he made a statement out of court contrary to his testimony on direct examination, it cannot be shown by an impeaching witness over proper objection that the witness to be impeached did make such a statement out of court unless on cross-examination of the witness to be impeached his attention was called with reasonable certainty to the time, place, circumstances, persons involved, and the statement alleged to have been made by him out of court. (Citing cases.)'

Every case cited in appellant's brief is one like the Sparks case, supra, where the witness sought to be impeached was not the accused. When the accused takes the stand to testify in his own behalf, he does so in a dual capacity--(1) as the accused and (2) as a witness; Chambers v. State, Ala., 84 So.2d 342, 343. There are instances when the impeachment predicate must be laid to the defendant when he is testifying; e. g., by proof of prior contradictory statements not admissible as confessions because not shown to have been voluntarily made. Smith v. State, 137 Ala. 22, 34 So. 396; Brown v. State, 243 Ala. 529, 10 So.2d 855; Alberson v. State, 254 Ala. 87, 47 So.2d 182. Another example is the case of Slaton v. State, 21 Ala.App. 422, 109 So. 118, 119, where 'The defendant, when being examined as a witness, testified that the still was owned by a man named Poe, who was then dead. It was proper to allow the state to prove that at the time the defendant was arrested he made the statement that Poe had nothing to do with the still. This tended to impeach the witness on a material point.'

The general rule in this state relative to an accused is that 'the acts, declarations and conduct of the accused, against interest, are always competent.' Woodard v. State, 253 Ala. 259, 44 So.2d 241, 245; Hill v. State, 194 Ala. 11, 69 So. 941, 2 A.L.R. 509, and among the reasons why this is so insofar as declarations are concerned is that 'all that the accused voluntarily wrote or said which is material to the charge, is competent against him because it is his own admission and against his own interest'. Elkins v. State, supra [250 Ala. 672, 35 So.2d 695].

In 2 Wharton's Criminal Evidence (12th Edition 1955) Section 397, we read 'Admissions are admissible although they contain exculpatory matter.

'An admission is substantive evidence. It is therefore not necessary that a foundation for the introduction of an admission against the interest of the accused be laid by asking him whether or not he made the statement.'

In IV Wigmore on Evidence, Third Edition, Sec. 1051, p. 8, we find: 'The rule requiring that the witness must have been warned when on the stand, and asked whether he had made the statement about to be offered as a self-contradiction (ante, §§ 1025 ff.), has always been understood not to be applicable to the use of a party's admissions, i. e., they may be offered without a prior warning to the party.'

Other authorities say:

'Statements and declarations by accused, before or after the commission of the crime, although not amounting to a confession, but from which, in connection with other evidence or surrounding circumstances, an inference of guilt may be drawn, are admissible against him as admissions. Such statements and declarations are original evidence and may be introduced without laying the foundation which is necessary when it is sought to impeach a witness'. 16 C.J. Criminal Law, Sec....