Cooley v. State, 1 Div. 905

• Decision Date: 17 December 1936
• Docket Number: 1 Div. 905
• Citation: 233 Ala. 407,171 So. 725
• Parties: COOLEY v. STATE.
• Court: Alabama Supreme Court

171 So. 725

233 Ala. 407

COOLEY v. STATE.

1 Div. 905

Supreme Court of Alabama

December 17, 1936

Rehearing Denied Jan. 21, 1937

Appeal from Circuit Court, Washington County; J. Blocker Thornton Judge.

George Cooley was convicted of murder in the second degree, and he appeals.

Affirmed.

Granade & Granade, of Chatom, for appellant.

A.A Carmichael, Atty. Gen., and Francis M. Kohn, Asst. Atty Gen., for the State.

FOSTER Justice.

The indictment charges appellant with murder in the first degree. He was found guilty of murder in the second degree, and punishment fixed at twenty-five years in the penitentiary.

There had been a lawsuit in a justice court, which we might infer was as to the possession of the house in which defendant lived. It was decided in favor of deceased. Defendant had a garden and some vegetables and potatoes, and deceased went to the house where defendant was living, and where defendant shot and killed him.

Appellant has assigned errors on the record, but his counsel do not argue them in the order of their assignment, but stress three points as a reason for reversal. We will consider them in that order, and then proceed to the others not argued, as required by section 3258, Code.

The first point is that the court overruled objection to evidence of threats, inculpatory statements, and a confession by defendant that he shot deceased before proof was made of the corpus delicti. The proof was that deceased was found lying dead near the edge of the porch where defendant lived with a hole shot in his chest or throat with buckshot. There was no shotgun there or other evidence that it was suicide. A fair inference is that he was shot by some person. Martin v. State, 90 Ala. 602, 8 So. 858, 24 Am.St.Rep. 844. The law infers that it was unlawfully done in the absence of proof to the contrary. Gibson v. State, 89 Ala. 121(5), 127, 8 So. 98, 18 Am.St.Rep. 96; Warren v. State, 197 Ala. 313, 72 So. 624; 11 Alabama Digest, Homicide, 345, k151. Circumstantial evidence may afford satisfactory proof of the corpus delicti. Hill v. State, 207 Ala. 444, 93 So. 460.

The requirement of the law is that confessions must be corroborated as to the fact that deceased was killed by some person intentionally in order for his conviction to be sustained. Usually the court will decline to receive evidence of threats or a confession until such proof is made, but, if it is admitted and later the preliminary proof is supplied, there is no harm done, and the error, if any, is cured. 16 Corpus Juris, 737; Ridgell v. State, 156 Ala. 10, 47 So. 71, 75; Palmer v. State, 168 Ala. 124, 53 So. 283; 16 Corpus Juris, 865, §§ 2180, 2181.

In this case both defendant and his wife testified that defendant shot and killed deceased. So that, before the evidence of threats and confessions was admitted, we think there was sufficient circumstantial evidence of the corpus delicti. But, if not so, it was proven later by defendant and his wife, and that cured any possible error. Moreover, since defendant testified that he killed deceased, his confession that he did was admitted without prejudice.

The same principles apply to the evidence of inculpatory statements made by defendant and also his threats directed against deceased.

After defendant had testified and rested his case, the State, on rebuttal, proved by Lane, without objection, that the general reputation of defendant was bad; "that he wants to be a bully and has the reputation in that section of being a bully." The same proof was made by the witness Stallworth also that "I forbade him coming on my premises any more after two or three things he did down there"--all as one narrative, following other matters in the same narrative.

The bill of exceptions recites that "defendant objected to each of the above questions before they were answered because only defendant's reputation for truth and veracity is at issue, and because defendant's reputation subsequent to the killing cannot be inquired into," and "the court overruled each of the objections, whereupon the defendant did then and there in open court duly except."

It was then brought out that his knowledge of defendant was acquired after the killing. Defendant then moved "the court to exclude each and every portion of the testimony of Stallworth on the ground that only defendant's reputation for truth and veracity is at issue, and that no evidence of defendant's reputation subsequent to the killing can be offered." But the bill of exceptions shows no ruling on that motion, nor exception reserved.

But to state some of the rules sought to be applied: If he has not testified, the inquiry as to defendant's character when admissible is limited to the time of the alleged crime or prior to it. Carter v. State, 226 Ala. 96, 145 So. 814. For impeachment of a witness the law permits evidence of general character, not limited to truth and veracity, but not including special traits not affecting truth and veracity, Dolan v. State, 81 Ala. 11, 12(5), 1 So. 707; Sweatt v. State, 156 Ala. 85, 47 So. 194; Cox v. State, 162 Ala. 66, 50 So. 398; and the time of the inquiry extends to the trial, Carter v. State, supra. But, when he has not put his character in evidence, and has testified as a witness, the State can only offer such character evidence as is admissible for impeachment.

The bill of exceptions shows a grouping of the objection in...