Finney v. State

• Citation: 10 Ala.App. 39,65 So. 93
• Decision Date: 14 April 1914
• Docket Number: 92
• Parties: FINNEY v. STATE.
• Court: Alabama Court of Appeals

65 So. 93

10 Ala.App. 39

FINNEY v. STATE.

No. 92

Court of Appeals of Alabama

April 14, 1914

Appeal from Circuit Court, Marengo County; John T. Lackland, Judge.

Jasper Finney was convicted of murder in the second degree, and he appeals. Affirmed.

I.I. Canterbury, of Linden, for appellant.

R.C. Brickell, Atty. Gen., and T.H. Seay, Asst Atty. Gen., for the State.

PELHAM J.

Reversible error cannot be predicated upon the court's action in excusing the juror Beverly, who was one of the special jurors drawn, and whose name appeared on the copy of the venire served on the defendant. It was shown that the juror was excused by the court before entering upon the trial, and before the jury to try the case had been selected, on account of the dangerous illness of a member of the juror's famly. Code, §§ 7279, 7280; Barden v. State, 145 Ala. 1, 40 So. 948.

It was proper to show by the witness who found the tracks near the deceased's body next morning after he was killed the night before that he examined the tracks and measured their length, and that about a No. 8 shoe would make that size track. Davis v. State, 152 Ala. 82 Wilson v. State,

171 Ala. 25, 33, 54 So. 572.

Furthermore this evidence could not be deemed prejudicial, as it was not shown what size shoe was worn by the defendant, or that the tracks testified to by the witness led in the direction of the defendant's home.

No objection is shown to have been made to the questions eliciting the testimony of the witness Randy Doobs, set out in the bill of exceptions, but, on the contrary, after the testimony of this witness is set out in narrative form, it is recited that "thereupon" the defendant moved to exclude the evidence of the witness. For aught shown to the contrary, the testimony was given in response to questions directly calling for it, to which the defendant made no objection. When no objection is shown to have been made to the question, but only to the answer, it will be presumed that the answer was responsive, and the objection comes too late. S.W. Ry. of Ala. v Maddox, 146 Ala. 539, 41 So. 9. A defendant cannot by delaying objections to questions thus speculate on whether the answer will be favorable or unfavorable, and predicate error upon the rulings of the court to objections made after the questions have been answered. W.U. Tel. Co. v. Bowman, 141 Ala. 175, 37 So. 493; Dowling v. State, 151 Ala. 131, 44 So. 403.

The court, on motion of the defendant's counsel, is shown to have excluded what the witness Clara Leach said about some one else having told her as to the identity of the voice she heard. What she testified to in this respect about the voice she heard being that of the deceased, as a matter of her judgment, based on her knowledge and experience of knowing the person and having heard his voice, was properly admitted in evidence, to be accorded such weight by the jury as they deemed it to be entitled to, taking into consideration the extent of her knowledge and the opportunity she had had of forming a correct judgment. A witness who is acquainted with facts and conditions upon which he can form a judgment is properly permitted to give his best judgment with respect to a matter of this kind establishing identity. Williams v. State, 149 Ala. 4, 43 So. 720.

It was entirely permissible to allow the solicitor to show, on the cross-examination of the defendant, or by other witnesses that the defendant had made threats a short time before the killing against some one in the neighborhood who had been shooting cows. The deceased in his lifetime lived in that neighborhood, and there was some evidence showing that shortly before the killing cows had been shot in that neighborhood, and that the deceased was connected with the shooting. In fact, it was the theory of the state that this shooting by the deceased of cows owned by the defendant or members of his family or his friends was the motive that actuated the killing, and there was evidence having a tendency to support this theory of the state. The threats were directed at a class of persons that included the decedent, or to which he belonged under one phase of the tendency of the state's evidence, and were not objectionable for indefiniteness. The admissibility of the threats was not affected by the mere fact that the...