Collins v. State

• Decision Date: 26 January 1928
• Docket Number: 1 Div. 440
• Citation: 217 Ala. 212,115 So. 223
• Parties: COLLINS v. STATE.
• Court: Alabama Supreme Court

115 So. 223

217 Ala. 212

COLLINS v. STATE.

1 Div. 440

Supreme Court of Alabama

January 26, 1928

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Tobe (alias Tobie) Collins was convicted of murder in the first degree and he appeals. Affirmed, and remanded for proper sentence.

F.K Hale, Jr., and Webb & Shepard, all of Mobile, for appellant.

Charlie C. McCall, Atty. Gen., and Bart B. Chamberlain, Sol., of Mobile, for the State.

SAYRE J.

Defendant appeals from the judgment of the trial court by which he has been sentenced to suffer death.

Exceptions reserved relate to rulings on evidence, to one ruling as to the competency of jurors, and the overruling of defendant's motion for a new trial. We state briefly the grounds of our conclusions as to such of the exceptions as seem in any degree to require comment.

The state's case was that defendant and deceased, having had differences and a difficulty about defendant's attentions to the wife of deceased, and defendant having made threats against the life of deceased, the latter with one Steadham as a companion was driving his automobile along the road in front of the residence of defendant's brother, and had been stopped by two women (who were inquiring as to the whereabouts of the husband of one of them), when defendant who was at the house of his brother, approached the automobile, stationary while deceased talked with the women and, saying, "You beat me with a stick (referring to what had passed between them about a week before), and I'll do worse than that to you," stabbed deceased, inflicting a wound which resulted in death after a few moments--this after dark, there being no light at the place save that from the lamps of the automobile. The state's further case was that deceased made no demonstration against defendant. Defendant's testimony tended to show that he approached deceased peaceably, and, after a hostile demonstration by the latter, killed him in self-defense. The jury accepted the state's version of the facts, and we are wholly unable to say that therein they committed error.

After deceased had received his fatal wound, he managed to escape from the automobile, getting out on the side opposite to that on which defendant was, and fled to the house of his sister, who lived close at hand, where he presently died. Evidence for the state went to show that defendant followed deceased for 12 or 15 steps, and then, coming back to the automobile where Steadham was, asked him if he "wanted to take it up." Steadham denied any desire to "take it up." To the ruling which allowed this testimony over his objection, defendant excepted. This inquiry by defendant, equivalent in effect to a declaration of malevolent purpose, appears to have been a spontaneous utterance, so connected with the principal transaction, made under its immediate influence, and so tending to illustrate that transaction, by showing an aggressive and hostile attitude of mind inconsistent with defendant's plea of self-defense, as to be admissible as a part of the res gestae (Jones on Ev. [[[[[[[[2d Ed.] § 344), and, whether a part of the res gestae, strictly speaking, or not, it tended to show a malevolent spirit in defendant (Crain v. State, 166 Ala. 5, 52 So. 31), and was admitted without error.

The presence of Steadham in the automobile at the time of the fatal difficulty was shown, and not denied. He did not appear as a witness. To explain his absence, evidently, the state was allowed to inquire of a witness: "Do you know whether or not Sibley Steadham is living or dead?" With entire propriety the state would have been allowed by competent evidence to account for Steadham's absence, but we do not hold that the burden of doing so rested upon the state. The witness answered: "I heard he was dead; that is all I know." And this answer, notwithstanding defendant's motion to exclude as hearsay was allowed to remain with the jury. There was no effort to show from whom or where the witness had heard of the death of Steadham, that it was a matter of common repute, or to show the nonavailability of more satisfactory evidence. With some limitations, hearsay evidence of the death of a person is admitted as being in the same class with such evidence of pedigree. Landers v. Hayes, 196 Ala. 533, 72 So. 106; Sheffield Iron Corp. v. Dennis, 204 Ala. 530, 86 So. 467; Elder v. State, 123 Ala. 35, 26 So. 213; Cherry v. State, 68 Ala. 29. Other cases might be cited. There are cases which hold that general reputation among a person's friends and acquaintances is admissible to prove his death. Such cases even have been criticized as going to establish a dangerous precedent on unsatisfactory reasons. 3 Jones, Com. on Ev.

(2d Ed.) § 1134; Estate of Hurlburt, 68 Vt. 366, 35 A. 77, 35 L.R.A. 794. But the court is of opinion that the cases so criticized state the proper rule, and that, moreover, general reputation may be admitted where reputation among friends and acquaintances is unavailable. It is clear in this case that the requirements of the stated rule have not been satisfied and that the court's ruling was technically erroneous. But, in view of the fact, that, for aught appearing, the absent witness, if alive, was as available to the defendant as to the state, that no sufficient reason appeared in the facts in evidence for a presumption that the witness favored the state or would likely have been prejudiced against defendant (Brock...