Booth v. State

• Decision Date: 19 June 1928
• Docket Number: 2 Div. 396
• Citation: Booth v. State, 22 Ala.App. 508, 117 So. 492 (Ala. App. 1928)
• Parties: BOOTH v. STATE.
• Court: Alabama Court of Appeals

117 So. 492

22 Ala.App. 508

BOOTH v. STATE.

2 Div. 396

Court of Appeals of Alabama

June 19, 1928

Appeal from Circuit Court, Bibb County; Thomas E. Knight, Judge.

B.M (alias Bam) Booth was convicted of assault and battery, and he appeals. Reversed and remanded.

Jerome T. Fuller, of Centerville, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

SAMFORD J.

This defendant, his wife, eight of his own children, his brother his nephew, his son's wife, and her two children were all in the home of defendant in an isolated part of the county at early breakfast time on a certain morning in February. So far as appears, they were peacefully enjoying themselves as a happy, though humble, family and the son's wife was playing on the organ "Home, Sweet Home." Just at this time three men approached the house from the rear, armed with shotguns and pistols, and, without stating their business, proceeded, against the warning of both the defendant and his wife, into the yard surrounding the house. The defendant, who was on the front porch, rushed into the house, got his gun, and all began shooting. Which of the four fired the first shot is not clear and remains in much doubt, but McCulley, one of the advancing party, testifying for the state, says:

"He (defendant) said, 'Stop right there; don't come another step.' And I stopped. I did not begin to speak. He said, 'I'll get my damn gun and kill every damn one of you.' He wheeled around and Bam Booth grabbed him by the arm, and said, 'Don't do that, Bam.' Al Gilbert (the injured man) walked up a little in front of me. He (Gilbert) threw up his gun as he did, and said, 'Stop!' Bam's wife jumped in between him and us, and threw her arms up, and sorter hollered. He ran in the house; there was a shot fired."

None of the state's witnesses could or would tell just exactly who fired the first shot, but all of the witnesses for the defendant testified that the advancing assailants fired one or more shots before the defendant fired.

Everything that transpired there at the house; everything said and done; the conversation between the parties; the screaming and running of the women and children; the number of shots fired; and the kind of guns used constituted the res gestae, and every fact relating to or shedding light on the transaction was admissible in evidence so that the jury might have a perfect picture of the defendant's home just before and immediately after it had been riddled with bullets and buckshots from the three men who did the shooting, and the court should have confined the evidence to the res gestae.

The court did not do this, but permitted the state, over the objections and exceptions of defendant, to pursue an inquiry involving the search of the territory near defendant's house and the finding of a "condenser to a still" in a "pine top" some 200 or 300 yards away from defendant's house. The examination proceeded along this line with all three of the state's witnesses as if defendant was being prosecuted for possessing a still, thereby directing the minds of the jury from the main issue, and tending, at least, to raise the suspicion that defendant was violating the law prohibiting the possession of a still. All of this testimony was illegal and irrelevant and tended to, and doubtless did, prejudice the minds of the jury against this defendant.

After en extended examination of the three state's witnesses regarding the finding of the "condenser," as described in the foregoing paragraph, and after the defendant's witnesses had all testified, the court seems to have realized its error and before beginning his general charge to the jury, in a short general statement and without further motion from defendant, sought to withdraw all of the illegally admitted testimony from the jury. This is a practice sometimes resorted to by trial judges, but it is doubtful if the poison is ever extracted or the error so cured as not to seriously injure the defendant before the jury. In any event such a course is never approved and as was said by Sayre, J., in Maryland Cas. Co. v. McCallum, 200 Ala. 154, 75 So. 902: "This court has always regarded the practice with cautious disapproval." Davis v. State, 18 Ala.App. 482, 93 So. 269; Watson v. Adams, 187 Ala. 490, 65 So. 528, Ann.Cas.1916E, 565. For the numerous errors committed in regard to this character of testimony the court should have granted the defendant's motion for a new trial.

Over proper objection, motion, and exceptions, the court permitted the state to introduce in evidence the following affidavit and warrant:

"Affidavit and Writ for Search Warrant. "The State of Alabama, Bibb County.

"Before me, John Hyde, a J.P., personally appeared M.O. Dailey, who being duly sworn, deposes and says that Bam Boothe has in House as in his possessing Ill Leagal licker.

"M.O. Dailey.

"Sworn to and subscribed before me this the 26th day of Feb., 1927.

"John Hyde, J.P."

"Search Warrant.

"The State of Alabama, Bibb County.

"To the Sheriff or Any Constable of Said County:

"Proof by affidavit having this day been made before me, by M.O. Dailey that Bam Boothe Has in House as in His passing Ill Leagle Licker you are therefore commanded, in the day time as at night, to make immediate search on the person of Bam Boothe for the following property Ill Leagal Licker, and if you find the same or any part thereof to bring it forthwith before me, at my office at McCulley Town.

"Dated the 26th day of Feb., 1927.

"John Hyde, J.P.

"Executed by finding part of still consisting of 1 coper condenser and several empty jugs and cans."

According to the testimony, this paper was turned over to M.O. Dailey a deputy sheriff for Bibb county, who says he had it in his pocket at the time of the advance on defendant's home, but no witness testifies, and there is no evidence, that Al Gilbert was ever deputized to aid in executing the...