Bowen v. State

• Decision Date: 24 May 1928
• Docket Number: 5 Div. 993
• Parties: BOWEN v. STATE.
• Court: Alabama Supreme Court

117 So. 204

217 Ala. 574

BOWEN v. STATE.

5 Div. 993

Supreme Court of Alabama

May 24, 1928

Appeal from Circuit Court, Lee County; James A. Hines, Judge.

Fred Bowen was convicted of murder in the second degree, and he appeals. Reversed and remanded.

H.A Ferrell, of Seale, and Samford & Samford, of Opelika, for appellant.

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

SAYRE J.

Appellant was convicted of murder in the second degree. Many exceptions were reserved.

The state's witness Green was allowed to testify: "He (meaning deceased) appeared to me to be dead." The objection is that this was a mere conclusion, an opinion of the witness, invasion of the province of the jury. The court thinks it was a shorthand rendering of the facts, which in the ordinary case--that is, a case not marked by catalepsy or something of that sort--are plain enough. Deceased had collapsed under several pistol wounds, of which the evidence as a whole shows without conflict he died almost instantly. The question was not wholly without point, because deceased or his body, was at the moment to which the question related sitting under the steering wheel of an automobile he had been driving, and was asked, we infer, in anticipation of, and to shed light upon, testimony by defendant's witnesses to the effect that, after the shooting, which they said occurred while deceased was on the ground, they had helped deceased into the car and into the seat under the steering wheel. This we say at unnecessary length because appellant thinks the evidence was clearly illegal.

State's witness Green, in agreement with all other witnesses who testified on the subject, testified that deceased was intoxicated and had been for some hours prior to the shooting. There was also evidence that deceased when intoxicated was turbulent and bloodthirsty. Defendant asked the witness: "At any time during that trip"--witness and deceased had gone together from Columbus, Ga., some six or eight miles into this state--"isn't it a fact that you begged Dock (the deceased) to let you take the steering wheel on account of his condition?" The state's objection was sustained without error. If not otherwise objectionable, the question was improper because it asked for the witness' reason. If it was desired that the witness should say that deceased was at that time intoxicated, the question should have been framed to elicit the appropriate answer without the complication suggested by including a reference to the witness' reason, for that was a matter to be inferred by the jury from the relevant physical facts, rather than the incompetent mere thought of the witness ( Western Union v. Cleveland, 169 Ala. 131, 53 So. 80, Ann.Cas.1912B, 534), and the inquiry in the terms in which it was made tended to bring on a collateral and useless inquiry.

Objection to the question, "What was the extent or magnitude of that difficulty?" referring to an altercation between defendant and deceased two or three hours before the killing, was properly sustained. If defendant desired to show that deceased had threatened defendant with a knife, that bare fact should have been inquired about as being all that was admissible in the circumstances of the killing to be stated hereafter. The witness' judgment as to the "extent or magnitude" of the previous difficulty was immaterial. It was for the jury to draw inferences, if any. Jones v. State, 120 Ala. 303, 25 So. 204. The inevitable tendency of the answer expected, viz., a statement of what the witness thought of the previous difficulty, would have been to draw into controversy the particulars of the previous difficulty contrary to the well-established rule.

What defendant said to the witness Fuller in exculpation of his act, after Fuller came upon the scene walking from a distance of 150 yards, being attracted thereto by the sounds of the shots fired from an automatic pistol in rapid succession, was not of the res gestae and was properly excluded. What defendant then said was not descriptive or explanatory of anything then in progress. It was a retrospective, self-serving, narration of then past facts and was properly excluded. Pitts v. State, 140 Ala. 80, 37 So. 101; Harkness v. State, 129 Ala. 71, 30 So. 73; Nelson v. State, 130 Ala. 83, 30 So. 728. In the case last cited the desired declaration was held to be admissible; but the difficulty in which deceased in that case was killed was regarded by the court as still in progress and the declaration there in question as a part of the transaction. Not so in the case at bar.

Proof as to where defendant went after the killing, the state having made no effort to prove flight, could have served no legitimate purpose of the defense. It afforded no insight into motive or malice, nor tended to show who was at fault in bringing on the difficulty or other pertinent matter. It was excluded without error.

Defendant's witness Hall having testified that deceased had the reputation of being a fussy, turbulent, rowdy man, the state, on cross-examination, was allowed, over defendant's general objection, to ask the witness whether he had known of his cutting anybody with a knife. The witness answered in the negative. The defense was that at the time of the killing deceased was making an attack upon defendant with a drawn knife. The accepted method of cross-examination, where character for peace and quiet is put in issue, is to ask the witness whether he has heard of specific acts of violence. Goodwin v. State, 102 Ala. 98, 15 So. 571. By analogy there was no reversible error in permitting this negative method of sustaining the character of deceased, which had been put in issue by the defendant. Ingram v. State, 67 Ala. 67; Hussey v. State, 87 Ala. 121, 6 So. 420.

In answer to defendant's question whether he knew the character of deceased in the community where he lived as a bloodthirsty, turbulent, fussy, and rowdy man, defendant's witness Newberry said: "Well; he was pretty rough when he was drunk." The court sustained the state's objection, on the ground, as we may assume, that the witness should first have been qualified by showing that he knew the character of deceased, and perhaps because his answer was not responsive. The first ground at least was well taken. Moreover, in the next breath, and in response to a repeated question, as we may assume, the witness qualified himself to answer and did answer the question according to its terms. On cross-examination the witness further deposed that he had never known of deceased having cut any one with a knife or shot any one with a pistol, saying further that what he meant was that deceased would fight. Then defendant interrogated the witness: "Have you heard of his being in fights and trying to cut folks?" The state's objection was sustained. The court here is of opinion that the defense had the benefit of all it was entitled to in the witness' answer to defendant's repeated question on the direct examination. The jury should be given to understand that the cross-examination of a witness as to character is for the sole purpose of testing the value and weight of his testimony as to the esteem in which the community where he lives or is known holds the subject whose character is brought into question. In forming his estimate the witness may have in mind his own knowledge of the subject of inquiry in connection with his opinion as to what others think; but his knowledge of particular instances is not admissible in evidence. When the state, without objection, elicited the fact that the witness did not know of deceased having shot or cut any one, it was content with less than it might have drawn out by asking what the witness had heard, and defendant was no more entitled on redirect than on original examination to ask what the witness had heard. The witness had answered as to the character of deceased and that was as much as defendant, who called the witness, was entitled to ask; otherwise such examinations might be insufferably protracted and the minds of the jury confused by the investigation of matters merely incidental.

The state, on the cross-examination of Mrs. Edwards, a witness called by defendant, and who saw the killing, which occurred in front of the house in which she lived, and who, with her husband (at the time of the trial in a hospital in North Carolina) had removed after the difficulty to that state asked the witness: "Then you left there [the place where they had lived] in a day or two and went to North Carolina?" Defendant thinks the question in some way reflected...