Butler v. State

Decision Date30 June 1917
Docket Number4 Div. 520
Citation77 So. 72,16 Ala.App. 234
PartiesBUTLER v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied Nov. 13, 1917

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Josiah Butler was convicted of manslaughter, and he appeals. Affirmed.

The following charges were refused to defendant:

(1) The court charges the jury that a reasonable doubt of guilt which authorizes an acquittal is one arising from a consideration of the evidence in the case, having regard for both what it shows and what it does not.
(2) The court charges the jury that, if they believe that any witness has sworn willfully and corruptly false, then they must disregard the testimony of such witness entirely.
(3) The court charges the jury that if, after considering all the evidence in this case, they fail to find that defendant had any motive to kill Lindsey, then this is a circumstance to which they may look, together with all the other evidence in determining whether or not defendant was guilty.
(4) The court charges the jury that, if they believe that any witness in this case has sworn willfully and corruptly false then they may disregard the testimony of such witness entirety.
(5) If the jury believe that any witness in this case has falsely and corruptly sworn to any material facts, they must disregard the testimony of such witness entirely.
(6) If, after considering all the evidence in this case, the jury find there is one single fact proven to their satisfaction which is inconsistent with defendant's guilt, this is sufficient to raise a reasonable doubt of his guilt, and the jury must acquit.
(7) Each and every one of you is entitled to his own conception as to what constitutes a reasonable doubt of this defendant, that before you can convict this defendant the evidence must be so strong that it convinces each juror of defendant's guilt beyond all reasonable doubt, and if after a consideration of all the evidence, a single juror has a reasonable doubt of defendant's guilt, then you cannot find him guilty.

F.M Gaines and T.M. Espy, both of Dothan, for appellant.

W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

BRICKEN J.

The defendant was indicted for murder in the second degree, was tried, and convicted of manslaughter in the first degree. The rulings of the court upon the evidence and the refusal of several written charges requested by the defendant are complained of as error on this appeal. These questions will be dealt with in the order in which they appear. There was no error in the court's allowing the witness Wingate to testify about what Buck Butler, the defendant's son, said during the difficulty, as it was the contention of the state that the son was also engaged with his father in the difficulty, which resulted in the death of John Wesley Lindsey, and what he said and did upon this occasion was clearly admissible, it being part of the res gestae. Wray v. State, 2 Ala.App. 139, 57 So. 144; Givens v. State, 8 Ala.App. 122, 62 So. 1020.

The court properly sustained the objection of the state to question propounded to witness Wingate, "Didn't she, the defendant's wife, ask Lindsey not to come back there (defendant's home) any more?" This was no part of the res gestae; the conversation sought to be inquired about having occurred several hours before the difficulty. It was therefore inadmissible. Allen v. State, 111 Ala. 80, 20 So. 490; Kirklin v. State, 168 Ala. 83, 53 So. 253.

There was no error in the ruling of the court in sustaining the state's objection to the question as propounded to witness Wingate, "You knew that Lindsey's feelings towards old man Butler were bad?" This was an assumption of fact that the feelings of Lindsey toward Butler were bad, and for that reason was objectionable. Andrews v. State, 159 Ala. 14, 48 So. 858. It was otherwise bad because the witness had not been properly qualified to testify as to the feelings between the two. A witness must be shown to have had knowledge of the feelings existing between the parties, which knowledge may be acquired by observation of the demeanor and by the conversation of the parties. It is a well-established rule in this state that feeling existing between parties is a fact that may be established by proof, but the question, if such it could be called, here asked was violative of this rule, and the objection thereto was properly sustained. Polk v. State, 62 Ala. 237.

The question on cross-examination to state witness Wingate as follows: "What was it that you or Lindsey, or some one in that crowd, said about Butler when you got within about 100 yards of his house?"--was too general and indefinite and not a part of the res gestae, and the court did not err in sustaining the state's objection thereto for these reasons. Had it been confined to the deceased, it would have possibly been admissible as having the tendency to show who was the aggressor in the fatal difficulty; but, as it was applied to every member of the party, the objection thereto was properly sustained for the reasons above stated. Lambie v. State, 151 Ala. 86, 44 So. 51; Brindley v. State, 193 Ala. 43, 69 So. 536, Ann.Cas.1916E, 177; Fowlkes v. Lewis, 10 Ala.App. 543, 553, 65 So. 724.

There was no error in refusing to allow the following question to the witness Wingate: "You do not say now that this is not so?" Newberry v. Atkinson, 184 Ala. 567, 64 So. 46. The witness Wingate testified, as to the predicate relative to an alleged statement made by him to one Owens, that "he did not tell him that or in substance that; he did not tell him substantially that." This statement was a complete denial upon the part of this witness that he made any such statement to Owens, and the court was not called upon to permit a repetition of this question, and there was no error in sustaining the objection interposed by the state; the witness having previously answered the question. Jones v. State, 181 Ala. 63, 61 So. 434; Fuqua v. State, 2 Ala.App. 47, 56 So. 751; Mitchell v. State, 14 Ala.App. 46, 70 So. 991.

While the question propounded to witness Kirksey was objectionable for the reason that the direction of the schoolhouse from Butler's place appears to be immaterial,...

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14 cases
  • Burton v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 30 Diciembre 1993
    ...a witness is error. See Lowe v. State, 88 Ala. 8, 7 So. 97 (1889); Watson v. State, 19 Ala.App. 267, 97 So. 118 (1923); Butler v. State, 16 Ala.App. 234, 77 So. 72 (1917). The charge must be phrased in permissive ('may disregard') rather than mandatory ('must disregard') 402 So.2d at 1087. ......
  • Tidmore v. Mills
    • United States
    • Alabama Court of Appeals
    • 15 Agosto 1947
    ... ... stated, and this against the rule that each alternative ... averment of itself must state a good cause of action ... Birmingham Ry., L. & P. Co. v. Nicholas, 181 Ala. 491, 61 ... The ... case presented by the evidence and the ... substantially injured by the denial. Supreme Court Rule 45; ... Borden & Co. v. Vinegar Bend Lumber Co., 7 Ala.App. 335, ... 62 So. 254; Butler v. State, 16 Ala.App. 234, 77 So ... 72; Parsons v. State, 32 Ala.App. 266, 25 So.2d 44 ... The ... observation we have just made ... ...
  • Birmingham Stove & Range Co. v. Vanderford
    • United States
    • Alabama Supreme Court
    • 29 Marzo 1928
    ... ... "(e) It does not appear that said injuries were the ... proximate result of the negligence complained of ... "(f) Said count attempts to state a wanton injury and is ... not sufficient in that respect ... "(g) Said count is repugnant and inconsistent, in that, ... same attempts to state ... by deceased," and the distance at which a pistol may ... scorch or powder burn. To the same effect is Butler v ... State, 16 Ala.App. 234, 77 So. 72. In Evans v ... State, 109 Ala. 11, 19 So. 535, the experiment was to ... ascertain the size of hole the ... ...
  • Brooks v. State
    • United States
    • Alabama Court of Appeals
    • 19 Marzo 1946
    ... ... that your purpose in this case?' The question assumes, in ... complete absence of any evidence to that effect, that Solon ... Brooks would get his father's place if appellant were got ... rid of. Questions assuming the truth of facts unproved by ... evidence are properly excluded. Butler v. State, 16 ... Ala.App. 234, 77 So. 72; Edmonds v. State, 16 ... Ala.App. 157, 75 So. 873; Haithcock v. State, 23 ... Ala.App. 460, 126 So. 890; Cox v. State, 25 Ala.App ... 38, 140 So. 617 ... Application ... for rehearing ... ...
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1 books & journal articles
  • Alabama. Practice Text
    • United States
    • ABA Antitrust Library State Antitrust Practice and Statutes (FIFTH). Volume I
    • 9 Diciembre 2014
    ...contract). 74. 220 U.S. 373 (1911), overruled by Leegin Creative Leather Prods. v. PSKS, Inc., 551 U.S. 877 (2007). 75. W.T. Rawleigh , 77 So. at 72 (citing Dr. Miles ); see Leegin , 551 U.S. at 887 (stating that Dr. Miles “establish[ed] a per se rule against a vertical agreement between a ......

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