Campbell v. State

Decision Date18 June 1946
Docket Number8 Div. 424.
Citation27 So.2d 220,32 Ala.App. 461
PartiesCAMPBELL v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied Aug. 1, 1946.

Carmichael & Carmichael, of Tuscumbia, and Beddow & Jones and G Ernest Jones, Jr., all of Birmingham, for appellant.

Wm N. McQueen, Atty. Gen., and John O. Harris, Asst. Atty. Gen for the State.

BRICKEN Presiding Judge.

The indictment charged this appellant, defendant below, with the offense of murder in the second degree, in that, 'she unlawfully and with malice aforethought killed John Campbell by shooting him with a shotgun, but without premeditation or deliberation,' etc. The trial below resulted in the conviction of the defendant for the offense of manslaughter in the first degree, and her punishment was fixed at imprisonment in the penitentiary for a period of five years.

The evidence discloses that the deceased named in the indictment was the husband of the defendant. That they had lived together for a long number of years and had sixteen children. Fifteen of the children were living at the time their mother shot and killed their father.

The record discloses there were no eyewitnesses to the killing and that the two principals were alone in their own home at the time of the homicide.

In order to offer proof in support of the material averment in the indictment that the defendant fired the shot that caused the death of the deceased, the State introduced as its witness, Mr. McRight, the Sheriff of the county, and he testified that some hours after the killing, he arrested the defendant, who at the time was at her father's home, several miles from where the killing occurred, and that she voluntarily told him (after proper predicate) that she and her husband had been having trouble all day, and that the shooting happened about 2:30 or 3 o'clock. 'She said she shot to scare him, that she didn't really mean to kill him.' 'She also said he was after her with a knife.' On direct examination of Sheriff McRight by the State, he testified to other matters which occurred during his conversation with the defendant.

The first proposition insisted upon by appellant to show error is that the trial court unduly abridged the right of the defendant by not allowing her to inquire into and bring out the entire conversation had between this witness, McRight, and the defendant. In this connection the appellant insists in briefs as follows:

'The trial court erred in refusing to allow the defendant to introduce into evidence the whole of a conversation containing inculpatory admissions between the defendant and witness, a part of which having been testified to on direct examination of witness by the prosecution.

'On examination of the Sheriff of Colbert County, O. H. McRight, the prosecution questioned witness with reference to a statement made by the defendant immediately after her apprehension. This statement contained admissions greatly prejudicial to the defendant, but also contained parts which would have, if allowed to have been introduced in evidence, tended to support the defendant's theory of self-defense.

'The witness, O. H. McRight, testified to a part of his conversation with the defendant following her arrest, containing admissions seriously damaging to the defendant's defense. But the court refused defendant's attorney on cross examination the right to bring out the whole of the conversation between defendant and the witness at that time.

'On cross examination of the witness the defendant's attorney propounded the following question which was objected to by the prosecution, and to which ruling of the court sustaining said objection, the defendant duly reserved an exception:

'Q. Did she tell you at the time that he had cut her before that and cut her across the hip?

'The defendant's attorney then stated to the court that the defense offered to show that the defendant had stated to the witness at the same time she had made the statement that he testified to on direct examination that the deceased had cut a gash eleven inches long across her hip with a knife. The prosecution objected to this statement and the court sustained the objection. The defendant thereupon duly excepted.'

It is an elementary rule of evidence, where part of a conversation is proved by one party, the other party may give his version thereof, and may also prove the whole of such coversation. The court committed reversible error in the above-stated ruling and the exception, duly reserved, was well taken. For superabundance of authorities see 6 Alabama Digest, Criminal Law, k396(2).

The next ruling of the court complained of by appellant, to which exception was reserved, is also error, in that, the trial court allowed the State to offer evidence of a former difficulty between the defendant and deceased several hours prior to the time of the fatal shooting and over repeated objections by defendant, allowed the State to offer testimony as to the full details of the former difficulty. As illustrative of this insistence we quote the following:

'During the course of the examination in chief of the State's witness, Howard Campbell, the witness testified that he had first visited the scene of the homicide with Noel Lee Campbell around nine o'clock in the morning of the day of the homicide; that there was at the time a difficulty existing between Appellant and deceased.

'During the direct examination of the witness the State, without any attempt to connect or show a continuation of the difficulty which took place between the defendant and the deceased at nine o'clock, A.M., on the morning of the homicide with the difficulty in which the deceased was killed, was permitted to propound numerous questions relating to the prior difficulty between the defendant and the deceased, to which questions the defendant interposed timely objections.

'Q. While you were there did you see any difficulty take place between Mrs. Campbell and John Campbell, the deceased?

'The defendant objects on the ground it is not a part of the res gestae.

'Objection overruled, the defendant excepts.

'Q. Just answer the question Howard. If you saw any difficulty take...

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14 cases
  • White v. State
    • United States
    • Alabama Court of Appeals
    • January 28, 1964
    ...behind the attorneys, was probably improper. But the question was withdrawn. Though the asking may have been error under Campbell v. State, 32 Ala.App. 461, 27 So.2d 220, this was not a ground of objection. Cf. Circuit Court Rule 33 and Under Luker the State has the undoubted right to ask a......
  • Mitchell v. State
    • United States
    • Alabama Court of Appeals
    • January 23, 1962
    ...further examination. Kimbrell v. State, 18 Ala.App. 641, 94 So. 241; Stephenson v. State, 27 Ala.App. 122, 166 So. 620; Campbell v. State, 32 Ala.App. 461, 27 So.2d 220; Graham v. State, 233 Ala. 387, 171 So. 895; Richardson v. State, 237 Ala. 11, 186 So. 580; Wesson v. State, 238 Ala. 399,......
  • Crosslin v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 25, 1986
    ...389 (1934); Byrd v. State, 51 Ala.App. 234, 237, 283 So.2d 683, 685 (1973). This rule is "plain and simple." Campbell v. State, 32 Ala.App. 461, 465, 27 So.2d 220, 223 (1946). An excellent statement of this rule is found in C. Gamble, McElroy's Alabama Evidence, § 121.06 (3d ed. 1977): "As ......
  • Mooneyham v. State
    • United States
    • Alabama Court of Appeals
    • February 20, 1951
    ...prior difficulties, the State had a right to make proof of the circumstances according to the contention of Mr. Byrd. Campbell v. State, 32 Ala.App. 461, 27 So.2d 220; Flournoy v. State, 34 Ala.App. 23, 37 So.2d 218; Traffenstedt v. State, 34 Ala.App. 273, 38 So.2d 619; Graham v. State, 233......
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