Blair v. State
| Decision Date | 14 February 1924 |
| Docket Number | 4 Div. 71. |
| Citation | 99 So. 314,211 Ala. 53 |
| Parties | BLAIR v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Covington County; Arthur B. Foster Judge.
Robert Blair was convicted of murder in the second degree, and appeals. Reversed and remanded.
W. W Sanders, of Elba, for appellant.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
Robert Blair, Dee Moulton, and Levi Maloy were indicted for killing Otis Kendrick; the indictment charging them with murder in the first degree. They demanded a severance, which was granted by the court, and each was tried separately. Dee Moulton was found guilty by the jury of murder in the second degree, and his punishment was fixed at 15 years in the penitentiary. He appealed from the judgment, which was affirmed by the Court of Appeals, and the writ of certiorari was denied him by this court (98 So. 715) from this judgment of affirmance. D. Moulton, alias v. State (Ala. App. 4 Div 863) 98 So. 709. This defendant, Robert Blair, pleaded not guilty and not guilty by reason of insanity; was tried and convicted by the jury of murder in the second degree; his punishment was fixed by the jury at 25 years in the penitentiary; and from a judgment and sentence of the court thereon he prosecutes this appeal to this court.
The defendants Robert Blair and Levi Maloy married sisters of the defendant Dee Moulton. There was evidence that the deceased, Otis Kendrick, was engaged to a sister of the wife of this defendant, seduced her, and refused to marry her, and was under indictment for the offense of seduction when killed. In July, 1922, there was an "all day singing" at Friendship Church. The defendants went to the church in the morning with some of their brothers, and the deceased reached there in the afternoon with Will Cooper. John Kendrick, father of deceased, and his family were at the church. When the deceased arrived at the church, there were signs, words, and acts by the defendants indicating hostility toward the deceased and his father. The deceased and Cooper remained at the church for some time, then left in their buggy on the road toward their homes. There was evidence tending to show this defendant and the other defendants followed, in haste, in their buggies-which was not in the direction of their homes-and then the father of deceased with his family went in his car in the same direction. The defendants overtook deceased about a quarter of a mile from the church, where there was an affray between the parties, in which knives, fists, and pistols were used. Howard Moulton came on the scene after the difficulty commenced. He was killed instantly by the deceased, and was a brother-in-law of this defendant. The codefendants and this defendant were each wounded. Otis Kendrick was severely wounded, lingered for a few days, and died from the wounds. His father was also injured. A discussion of the nature and a description of the different wounds received by the persons engaging in the difficulty is unnecessary.
The acts, words, signs, and declarations of each defendant indicating hostility toward the deceased or his father at the church-leaving in their buggies after the deceased, following him in haste, running into another vehicle in the pursuit of him-were all part of one continuous transaction leading up to and shedding light on the final, fatal difficulty; and there was no error committed by the court in allowing the state to prove them. Armor v. State, 63 Ala. 173; Jordan v. State, 81 Ala. 20, head note 21, 1 So. 577.
Practically all of these alleged errors, herein referred to, were passed upon by this court in the companion case of D. Moulton v. State, supra, and a separate discussion of them is unnecessary.
There are 99 assignments of error, many growing out of what the parties did and said at the church and along the road just before the difficulty, indicating hostility toward the deceased or his father; and, as above stated, the court did not err in allowing proof of them by the state.
The father of deceased testified his feelings were not good towards Blair, Maloy, or Dee Moulton, the defendants. The defendant was not permitted by the court to ask him "if they are not good toward Mrs. Moulton." In this the court did not err, for the reason that, while they were each witnesses, neither is a party to the case. Mrs. Moulton was a witness only in the case, and the mother or mother-in-law of the defendants; and his feeling toward her would have no bearing on his testimony and was immaterial to the issues in the case.
Levi Maloy, one of the defendants, testified for this defendant, and was asked by the state on cross-examination, "Blair has a plea of insanity in this case, hasn't he?" to which he replied, "I don't know; I suppose he did." This defendant entered a plea of insanity. It was on record and had been stated by the defendant or his attorney to the jury; and this testimony could be of no injury to him, if erroneous. The state on cross-examination was allowed to ask Levi Maloy: "And didn't your father tell you: 'Levi, I tried to get you to leave that church when I left yesterday afternoon, and you would not do it, and now you have got into trouble, and I don't know who is going to get you out of it; I am not able to do it?"' and he answered, "He did not say it."
Will Smathers, witness for the state, was allowed by the court to testify that on the next day after the fatal difficulty, he was at Mrs. Moulton's house and heard the father of Levi tell him "I tried to get you to leave that church when I left yesterday afternoon, and you would not do it, and now you have got into trouble, and I don't know who is going to get you out of it; I am not able to do it."
This is a declaration by a father to his son, a codefendant, the day after the difficulty; this defendant not being present, and Levi Maloy was not on trial. It may have been relevant evidence on his trial as to him, but it was not admissible against this defendant. It was clearly hearsay evidence against this defendant, as it was made in his absence and the next day after the offense, if any, was committed. James v. State, 115 Ala. 83, head note 1, 22 So. 565; Everage v. State, 113 Ala. 102...
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Bachelor v. State
...v. State, 204 Ala. 685, 87 So. 183; Rowlan v. State, 14 Ala.App. 17, 70 So. 953; Everage v. State, 113 Ala. 102, 21 So. 404; Blair v. State, 211 Ala. 53, 99 So. 314; v. State, 171 Ala. 19, 55 So. 159; Whitehead v. State, 16 Ala.App. 427, 78 So. 467. However, it was not necessary that it be ......
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Tillison v. State, 6 Div. 473.
... ... the statements alleged to have been made by defendant were ... all uttered while the officers were engaged in the search for ... the alleged illegal liquors, which was but one continuous ... [27 So.2d 45] ... transaction. Armor v. State, 63 Ala. 173; Blair ... v. State, 211 Ala. 53, 99 So. 314; Jordan v ... State, 81 Ala. 20, 1 So. 577; Glass [248 Ala ... 201] v. State, 147 Ala. 50, 41 So. 727; ... Wharton's Crim.Ev., Vol. 1, § 495, p. 755 (11th ed.) ... The ... rules relating to res gestae on the one hand and to admission ... of ... ...
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