Eden v. State

• Decision Date: 19 August 1930
• Docket Number: 7 Div. 682.
• Parties: EDEN v. STATE.
• Court: Alabama Court of Appeals

129 So. 797

24 Ala.App. 37

EDEN v. STATE.

7 Div. 682.

Court of Appeals of Alabama

August 19, 1930

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Ed Eden was convicted of murder in the second degree, and he appeals.

Reversed and remanded.

E. O McCord & Son, of Gadsden, for appellant.

Charlie C. McCall, Atty. Gen., and Merwin T. Koonce, Asst. Atty Gen., for the State.

RICE, J.

Appellant was convicted of the offense of murder in the second degree. His punishment was fixed at imprisonment in the penitentiary for the term of eighteen years. The deceased, one John O'Bryan, a deputy sheriff of Etowah County, attended night "preaching services" at a little country schoolhouse. As the services "broke up," deceased along with others of the congregation, came out the front door, where, at the steps, defendant accosted deceased saying he "wanted to speak to him a minute." The two of them defendant (appellant) and deceased, took a few steps, to a corner (front) of the little building, where, in the darkness defendant shot and killed deceased with a pistol.

There was some conflict in the testimony as to the actions of deceased immediately before and at the time of the shooting, with reference to his attempt, vel non, to draw his pistol, etc., but, so far as we can see, the whole circumstances, as variously interpreted by the different witnesses, were properly allowed to be detailed in the testimony.

Defendant's contention that his purpose in accosting deceased was a peaceable, proper, and lawful one, to adjust a grievance against deceased, on account of a report made to defendant, late in the afternoon of the day of the killing, by defendant's wife, that she had, on the morning of that day, been insulted and abused by deceased, was allowed to be fully presented to the jury, and the law governing the consideration of same was, we think, clearly and correctly given to them in charge.

We think and hold that it was not improper to allow the sheriff of the county to testify as to the surroundings, the situation of the deceased's body, etc., the picking up of a pistol, some cartridges, etc., near the body of deceased, at the time said sheriff reached the scene of the killing, a short time after it had occurred. Practically everything to which said sheriff testified was without dispute anyway, but if, as is now argued here by appellant's (defendant's) able counsel, there may have been changes made, in the physical surroundings at the scene of the killing, between the time the same occurred and the time of the arrival of the sheriff, before the sheriff's said testimony could be said to be inadmissible, we think there would have had to be in evidence testimony showing or tending to show such changes. In other words, what we are trying to say is that we do not think the sheriff, going promptly to the scene of a homicide to investigate same, should not be allowed to tell the jury what he found, upon reaching the scene, especially where it clearly appears that he is merely narrating what he observed when he reached the place, and that no effort is made to have the jury understand him, or his testimony, differently-where, in fact, it could not be understood differently.

Aside from our belief that the testimony of the sheriff, discussed above, was competent, and admissible, we are clear to the conclusion, and hold, that the same, considered in connection with the whole evidence, was not prejudicial to defendant's case anyway.

It was error, and, so far as we can see, prejudicial, to allow the defendant's witness Pierce Battles to be impeached by showing that he had served a "ninety day sentence here in jail, from the federal court." Appellant's motion to exclude this testimony should have been sustained. Pippin v. State, 197 Ala. 613, 73 So. 340; Huckabaa et al. v. State, 4 Ala. App. 68, 58 So. 684.

A reading of the opinion by Mr. Justice Sayre, in the case of Bolton v. State, 209 Ala. 179, 95 So. 874, 875 coupled with an examination of the authorities he cites, leads us to the conclusion, and we hold, that the defendant should have been allowed to testify that, at about "sundown" on the day of the killing, which killing occurred as soon as he came into the presence of deceased thereafter, and not more than two or three hours after receiving the information, defendant's wife told defendant, for the first time, of an assault, or an attempted assault, made on her, or, at least, of a grave insult offered her, by the deceased on...