Clark v. State
| Decision Date | 10 May 1921 |
| Docket Number | 4 Div. 692. |
| Parties | CLARK v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied June 21, 1921.
Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.
Will Clark was convicted of murder in the second degree, and he appealed. Affirmed.
Certiorari denied. 91 So. 921.
W. O Mulkey, of Geneva, and Farmer, Merrill & Farmer, of Dothan for appellant.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The appellant was indicted for murder in the first degree, was convicted of murder in the second degree, and sentenced to the penitentiary for a term of 15 years.
In the examination of several witnesses, the solicitor, over the objection of the defendant, was permitted to show that the defendant just before the shooting had his pistol concealed, and that it was not open to view. The objections made to these questions were general, and motions to exclude the answer were predicated on general grounds. The appellant insists that by this testimony the state invoked the provisions of section 7086 of the Code, which makes it murder in the second degree where the killing in any sudden rencounter or affray is caused by the assailant by the use of a deadly weapon which was concealed before the commencement of the fight, his adversary having no deadly weapon drawn. There is nothing in the record to indicate that such was the intention of the state in eliciting such testimony, and whether the state was seeking to have a conviction under either of the offenses embraced in the indictment, it was competent to show the facts above enumerated as a part of the res gestæ. There is nothing in the court's oral charge or the given or refused charges which indicates that this section of the Code, or the aspect of the case as now presented, was even called to the attention of the court, jury, or any one connected with the trial of the case. Moreover the defendant testified without objection when being examined in his own behalf that he had not shown his pistol up to the time he shot, and he cannot complain of the improper admission of testimony where he himself testified to the same facts. Swain v. State, 8 Ala. App. 26, 62 So. 446; Ragland v. State, 178 Ala. 59, 59 So. 637; Chestnut v. State, 7 Ala. App. 72, 61 So. 609; 4 Michie Dig. p. 575.
On redirect examination the witness Howard Andrews stated that he had a conversation with the defendant on Friday morning before the shooting on Saturday. The solicitor then asked the witness: "What did he tell you?" Over the objection of the defendant the witness answered he was up at Ballard's (deceased's) the night before to see him about some cows, and they got up a row, and Ballard jumped at him, and took his gun away from him, and told him he would wear him out if he didn't go on and leave him alone; that Ballard could not come down there that morning and do him that way again. It is sufficient to say in regard to the objections and motion to exclude the answer that they were general objections, and as such insufficient.
That the defendant entertained ill will towards the deceased, and made a threat against deceased, was admissible, and a mere general objection is unavailing unless all of the conversation was inadmissible. Roden v. State, 13 Ala. App. 105, 69 So. 366; West v State, 7 Ala. App. 145, 62 So. 290, 13 Michie, p. 718. Moreover, if the grounds of objection were good, the answer reveals a declaration made by the defendant in the nature of a threat against deceased, and therefore no injury resulted to the defendant. Wilson v. State, 110 Ala. 1, 20 So. 415; Wilson v. State, 140 Ala. 43, 37 So. 93. Threats or statements in the nature of threats, tending to show preparation for crime, or even the conduct of accused at or near the time or place of the crime, are admissible in evidence. Davis v. State, 126 Ala. 44, 28 So. 617.
After the witness Gilley had testified the defendant made a motion to exclude his testimony. Where no objection is made to the question until it has been answered, the defendant is not entitled to have the answer stricken on motion. Malone v State, 16 Ala. App. 185, 76 So. 469; Machen v. State, 16 Ala. App. 170, 76 So. 407; Rivers v. State, 13 Ala. App. 362, 69 So. 387;...
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