Dickey v. State

• Decision Date: 30 June 1916
• Docket Number: 8 Div. 404
• Citation: 15 Ala.App. 135,72 So. 608
• Parties: DICKEY v. STATE.
• Court: Alabama Court of Appeals

72 So. 608

15 Ala.App. 135

DICKEY v. STATE.

8 Div. 404

Court of Appeals of Alabama

June 30, 1916

Rehearing Denied Aug. 1, 1916

Appeal from Law and Equity Court, Madison County; J.H. Ballentine Judge.

Cecil Dickey was convicted of an assault with intent to murder one Stokely Milner, and he appeals. Affirmed.

Brown J., dissenting in part.

The exceptions to evidence sufficiently appear from the opinion as do the tendencies of the evidence. The following is the charge given for the state:

If you believe from all the evidence in this case beyond a reasonable doubt that the defendant is guilty, although you may believe it is possible that he is not guilty, you must convict him.

The following are the charges referred to as refused to the defendant:

(1) The court charges the jury that under the evidence in this case Milner did not have any lawful authority to seize liquors without a warrant, simply because it was in or at the mill, whether he was marshal or not.

(2) The court charges the jury that the town marshal of New Hope had no authority to search and enter the mill and seize liquor at the mill without a warrant.

(5) To reduce the offense to an assault and battery it is not necessary that the defendant, at the time he struck the blow should have been unconscious of what he was doing, but if there was sufficient provocation to excite sudden passion and defendant acted under such passion, then the presumption is that passion disturbed the sway of reason, and made him regardless of his act, and if the jury believe this from the evidence, then they may find him guilty of an assault and battery merely.

(6) The court charges the jury that if the defendant, on seeing his father dead or dying, bleeding and gasping for breath, under such circumstances as would cause an ordinary man and reasonable man to act upon them through an overpowering feeling of resentment, rendering his mind incapable of cool reflection, and that the defendant was acting under such impulse of resentment and without reflection and not from malice, his act was not in law a malicious act, and he would not be guilty of an assault with intent to murder, and you should not convict him of more than an assault and battery.

(11) If the jury believe the evidence in this case, there was not the lapse of sufficient time after defendant saw his father dead or dying until the shooting by the defendant in this case for what the law terms "cooling time."

(14) If the father of defendant was authorized by Owens, the justice of the peace, in writing to arrest Milner under a warrant for him, and he undertook to arrest him, and Milner resisted and killed him, this was unlawful and unjustifiable.

Taylor & Watts, of Huntsville, and John A. Lusk & Son, of Guntersville, for appellant.

William L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen., for the State.

BROWN J.

The questions presented for review arise from the admission of certain evidence offered by the state, the giving of a special charge requested by the solicitor, and the refusal of several charges requested by the defendant.

The bill of exceptions only sets out some of the evidence and some of the tendencies of the evidence, but does not purport to set out all the evidence, or even all the tendencies of the evidence. With the record in this condition, if the evidence objected to is not inherently incompetent, but such as may be competent and relevant in connection with other evidence, the presumption will be indulged in favor of the ruling of the trial court that other evidence was offered rendering the testimony admissible. Harper v. State, 109 Ala. 28, 19 So. 857; Davis v. State, 168 Ala. 53, 52 So. 939; Ventress v. Town of Clayton, 165 Ala. 349, 51 So. 763; Pope v. State, 183 Ala. 61, 63 So. 71; Harwell v. State, 12 Ala.App. 269, 68 So. 500; Whatley v. State, 144 Ala. 75, 39 So. 1014. Otherwise stated, the burden is on the appellant to affirmatively show error. Sanders v. Steen, 128 Ala. 633, 29 So. 586; Clardy v. Walker, 132 Ala. 264, 31 So. 78; Sanders v. Edmonds, 98 Ala. 157, 13 So. 505; Webb v. Ballard, 97 Ala. 584, 12 So. 106; Donaldson v. Wilkerson, 170 Ala. 507, 54 So. 234; Smith v. State, 183 Ala. 10, 62 So. 864. If, however the evidence objected to is inherently incompetent--not capable of being rendered competent and admissible in connection with other evidence--no such presumption prevails. Dugger v. Pitts, 145 Ala. 358, 39 So. 905, 8 Ann.Cas. 146.

The testimony as to particulars of the difficulty between the father of the defendant and Milner were of the former class. If evidence was offered showing that the particulars of the difficulty between Milner and W.R. Dickey were of the res gestae of the major fact in this case--the shooting of Miller by defendant--or that it was a part of one continuous transaction in which W.R. Dickey was also shot and killed, or if the shooting of Milner by defendant was the result of a conspiracy between the defendant and W.R. Dickey, evidence as to the particulars leading up to and embraced in the shooting of W.R. Dickey by Milner and all that was said and done at that time was competent. Wood v. State, 128 Ala. 27, 29 So. 557, 86 Am.St.Rep. 71; Dixon v. State, 128 Ala. 54, 29 So. 623; McAnally v. State, 74 Ala. 9; Wilson v. State, 68 So. 543; Thomas v. State, 133 Ala. 139, 32 So. 250; West v. State, 168 Ala. 1, 53 So. 277. Therefore it does not affirmatively appear that the testimony as to the particulars attending the killing of defendant's father by the state's witness, Milner, was irrelevant, and that its admission was error.

The fact that the prosecuting witness, Milner, as marshal of New Hope, seized liquors belonging to the defendant or his father on the morning previous to the assault and delivered the liquors seized to the municipal authorities, in connection with the threats made by the defendant and his conduct toward Milner previous to the assault, tended to show motive for the assault. Jones v. State, 68 South 690; Brunson v. State, 124 Ala. 40, 27 So. 410; Marler v. State, 68 Ala. 580.

One theory of the prosecution was that a conspiracy existed between the witness Owens, who was jointly indicted with the defendant, the defendant, and W.R. Dickey to assault the witness Milner, and that a warrant for the arrest of Milner was issued by the witness Owens on an affidavit of W.R. Dickey, charging Milner with the larceny of the whisky seized at the mill on the morning before the killing, to be used as a cloak to cover the real motives of the conspirators; that W.R. Dickey was deputized to execute this warrant as a means of giving color of authority to his conduct, and to afford him an opportunity to approach and assault Milner. The fact of the issuance of the warrant and Dickey's deputation was brought out by the defendant, and it was permissible for the state to show what was said at the time the warrant was procured as a circumstance tending to sustain this theory of the prosecution. Way v. State, 155 Ala. 52, 46 So. 273; Morris v. State, 146 Ala. 66, 41 So. 274; Brindley v. State, 69 So. 536; Underhill, Cr. Evidence, 492-494.

The defendant, as a witness in his own behalf, testified to facts tending to show that shortly before the assault of Milner he had been drinking to such extent that at the time of the assault he was so under the influence of intoxicating liquors that he could not form the intent to murder (Whitten v. State, 115 Ala. 72, 22 So. 483), and it was permissible on cross-examination for the purpose of testing the credibility of his testimony to inquire as to the quantity of liquor consumed and when and from whom he obtained it.

For the purpose of showing interest or bias on the part of witnesses in the case, the court allowed the defendant to show that some of the witnesses had contributed to a fund for the prosecution of the defendant, but limited the scope of this inquiry to the witnesses in the case. This limitation was proper. The fact that others who were not witnesses in the case contributed was wholly immaterial. It was not only the right of the defendant to show that such contributions were made by the witness, but the amount contributed as well ( Harwell v. State, 11 Ala.App. 188, 65 So. 702); and if, as an official of the town of New Hope, the witness participated in making a contribution for the special purpose of prosecuting this defendant, it was proper to show this and the amount of such appropriation; and especially is this true in view of the fact that witness had agreed to pay his "part" of such contribution. The witness Butler testified that he agreed to contribute $25 of his own to the fund, and that he "partly voted the corporation money," and that he agreed to contribute his own money through the...