Dodd v. State, 7 Div. 836.

• Decision Date: 01 August 1946
• Docket Number: 7 Div. 836.
• Citation: 32 Ala.App. 504,27 So.2d 259
• Parties: DODD v. STATE.
• Court: Alabama Court of Appeals

27 So.2d 259

32 Ala.App. 504

DODD v. STATE.

7 Div. 836.

Alabama Court of Appeals

August 1, 1946

C W. Stringer, of Talladega, and L. H. Ellis, of Columbiana for appellant.

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

HARWOOD Judge.

The appellant, Clarence E. Dodd, was indicted for murder in the first degree. He was by a jury found guilty of manslaughter in the first degree and his punishment fixed at imprisonment in the State penitentiary for a term of four years.

The evidence introduced by the State was directed toward establishing that on the night of March 11, 1944, a poker game was being held in the home of the appellant. The deceased and six other men were present. During the game appellant and one of the participants, Charlie B. Pruett, had loaned and repaid $5 between them several times and some discussion arose between these two as to whether appellant owed Pruett this sum. The deceased injected himself into the discussion by telling appellant he knew 'damn well' he owed Pruett the money. Appellant told deceased the matter was none of his business, whereupon deceased attempted to attack appellant with a knife. The appellant defended himself by knocking deceased down. While deceased was down appellant got on top of him and slapped or hit deceased twice. Upon deceased's promise to put away his knife the appellant let him up. The appellant then picked up a shotgun which was lying on a bed in the room and ordered deceased out of his home, and escorted deceased to the door. The deceased's home was about one hundred and thirty-five feet distant from appellant's home.

This disturbance seems to have broken up the poker game, and all of the participants departed. The appellant called to one of them, Tommy Wills, to come back, which Wills did, followed by Roy Johnson. Johnson reported Wills' car had been stolen. Wills said he would go and investigate, and appellant went with him, carrying his shotgun. They got as far as the house of Mr. Murphy, a neighbor, whose house was about seventy feet from that of appellant's, when they saw Wills' car still where it had been originally parked. Appellant and Wills thereupon sat down on Murphy's steps and had talked about five or ten minutes when they observed the deceased come out of his back door carrying a shotgun. Wills went toward his car and appellant started toward his house. When appellant was in his yard and near his front steps he fired twice at deceased who, according to appellant, had advanced into his yard and was about twenty steps away. The deceased walked back toward his home but collapsed and fell after a few steps.

The appellant immediately went to the home of Mr. Sam Roberts, a peace officer, informed him he had shot the deceased, and surrendered to him. Roberts took appellant back to a small road close to deceased's house and parked his car. After they had been their some time the appellant told Roberts that he had no warrant for him and that he (appellant) was going home. Roberts thereupon caught appellant by his belt and appellant struck Roberts twice. Roberts then felled appellant with a billy. This testimony pertaining to this difficulty between appellant and Roberts was admitted over the objection of the appellant.

The appellant contends strenuously that the lower court erred in admitting over his timely objections the testimony relating to and detailing the difficulty between the appellant and deceased at the poker game prior to the shooting.

The developed doctrine of our decisions is liberal in permitting the defendant in assault or homicide cases where self defense is involved to go into the details of a prior difficulty not too remote in time in order to show the gravity thereof and as shedding light on who was the aggressor in the subsequent difficulty. Ryan v. State, 100 Ala. 105, 14 So. 766; Watts v. State, 177 Ala. 24, 30, 59 So. 270, 272; Nelson v. State, 13 Ala.App. 28, 68 So. 573; Folkes v. State, 17 Ala.App. 119, 82 So. 567; Thornton v. State, 18 Ala.App. 225, 90 So. 66. On the other hand, the State is limited to showing only the fact of a prior difficulty between the accused and deceased, but cannot go into the particulars or merits of such prior difficulty. Stallworth v. State, 146 Ala. 8, 41 So. 184; Bluett v. State, 151 Ala. 41, 44 So. 84; Robinson v. State, 155 Ala. 67, 45 So. 916; Patterson v. State, 156 Ala. 62, 47 So. 52; Sanders v. State, 19 Ala.App. 367, 97 So. 294; Higdon v. State, 25 Ala.App. 209, 143 So. 213.

The rule allowing the State to show the fact, but not the details of a former difficulty, is undoubtedly easier to state than to apply. The demarcation between the fact, or highlights, of a former difficulty, and its details, is indeed a tenuous and vague division. A measure of discretion should and must be allowed the trial judge in determining the extent of detailing necessary to picture and constitute the fact. Brothers v. State, 236 Ala. 448, 183 So. 433.

To be considered with the above principles is the doctrine too well understood to require citation that if the prior difficulty be so connected with the later offense as to form a part of the res gestae then all details of the prior difficulty are admissible in evidence.

As stated by Carr, J., in Brown v. State, Ala.App., 31 So.2d 670, 675.

'The term res gestae literally means 'the thing done; transactions; essential circumstances surrounding the subject.' Black's Law Dictionary, 3 Ed., p. 1539.

"Acts or declarations, to be admissible under the principle of res gestae, must be substantially contemporaneous with the main fact under consideration, and so closely connected with it as to illustrate its character.' Dudley v. State, 185 Ala. 27, 64 So. 309, 310. See also, Roan v. State, 225 Ala. 428, 143 So. 454.

'We sometimes labor under the false premise that if a transaction occurs at or about the time of the happening of the main event, this and this alone brings the transaction within the res gestae rule. This is not the measuring rod. The relation in point of time is not the sole criterion. The inquiry is: Was it so connected and associated with the chief transaction as to virtually and effectively become a part of it? Pope v. State, 174 Ala. 63, 57 So. 245; Livingston v. State, 7 Ala.App. 43, 61 So. 54.'

In the instant case the participants in the poker game departed immediately after the difficulty between appellant and deceased. Defendant accompanied one of the participants about seventy-five feet to a neighbor's house where they sat on the steps. After a lapse of only five or ten minutes the deceased was observed by appellant leaving his house with a shotgun. In our opinion the actual shooting was so connected with the prior difficulty by proximity of time and sameness of locality as to make it but a continuation of the prior difficulty. The details of the prior difficulty are in this case so dovetailed with the subsequent shooting as to be necessary to a rational understanding of the homicide. These details were in our opinion therefore properly received in evidence as part of the res gestae.

Even had we concluded...