Floyd v. State

• Decision Date: 14 July 1887
• Citation: 82 Ala. 16,2 So. 683
• Parties: FLOYD v. STATE.
• Court: Alabama Supreme Court

2 So. 683

82 Ala. 16

FLOYD v. STATE.

Supreme Court of Alabama

July 14, 1887

Appeal from city court of Montgomery. Indictment for murder.

Syllabus by the Court.

When it is sought to impeach the credibility of a witness by proving that he has on other occasions made contradictory oral statements, he may be asked, on cross-examination, if he did not make such statements; but, when his former statements were reduced to writing and subscribed by him, as when testifying on the preliminary examination of the defendant before a committing magistrate, and the deposition or writing is producec in court, it must be read to him, or he must be allowed to read and examine it, before he can be interrogated as to his former statements.

While the defendant's confessions in a criminal case cannot properly be received as evidence until some independent proof of the corpus delicti has been adduced, the prima facie sufficiency of such preliminary proof is a question for the determination of the court. When the record shows that such proof was adduced, this court would presume, if necessary, that it was introduced before the confessions were offered; and, even if it were introduced subsequently, the error in the prior admission of the confessions would be thereby cured. ^[1]

The rule is well established that the testimony of a witness since deceased, given on the preliminary examination of the defendant before a committing magistrate, is admissible as evidence against him on the tiral, if it is shown that the witness was sworn by competent authority ,and that the defendant had an opportunity to cross-examine him.

An objection to evidence on a specified ground is a waiver of all other grounds of objection; and when a specific objection has been made and overruled, and a general objection is afterwards interposed to a part of the evidence, not stating any particular ground, it will be presumed to have been based only on the specific ground already overruled.

A policeman on duty, or other lawful officer, has authority to arrest, at any time or place, a person whom he knows to be charged with felony, (Code 1876,§§ 4653, 4664,) and may pursue and use necessary force if the accused flees or resists. If he is killed by the accused while in pursuit, the killing is without excuse or palliation, and the doctrine of self-defense is not available, although the accused may have been innocent of the felony with which he is charged.

The deceased, a policeman, having attempted, while on duty, to arrest the defendant, for whom he had no warrant, but who was at the time charged with a felony, and being shot by the defendant while fleeing and pursued, evidence of the pendency of the indictment against the defendant, the forfeiture of his bail-bond, the reward offered for his arrest by his sureties, his acquaintance with the deceased as a policeman and the knowledge of all these facts by the deceased, is relevant and material, as shedding light on the animus of the defendant, and as bearing on the question of self-defense.

The defendant being indicted for a felony, (not capital,) being accosted at night by a policeman, who mistook him for another person, fleeing to avoid arrest, and being pursued by the officer, whom he thereupon turned and shot, charges asked asserting the doctrine of self-defense because the policeman was pursuing the defendant by mistake for another person, are properly refused.

A charge asked, which is either abstract or argumentative, is property refused.

A charge given, which asserts a correct legal proposition applicable to the evidence, is not ground of reversal, though it may have a tendency to mislead, or may be subject to criticism on account of its phraseology.

The defendant in this case, John Floyd, a freedman, was indicted for the murder of John R. Pugh, a policeman of the city of Montgomery, was tried on issue joined on the plea of not guilty, convicted of murder in the first degree, and sentenced to the penitentiary for life. The deceased was shot on Saturday night, July 31, 1886, while in pursuit of a man whom he was attempting to arrest, and who turned and shot as he ran; and he died, from the effects of the wound, several months afterwards. As to the circumstances attending the shooting, it was shown on the trial by the testimony of one Laprade, another policeman, that he and the deceased were out on duty in the northern part of the city, watching especially for one Mose Howard, a freedman, for whom they had a warrant of arrest charging him with a misdemeanor. While sitting on the bridge near the crossing of the lower Wetumpka road with the Eufaula railroad, waiting the return of a messenger whom they had sent out, having halted several negroes as they passed, and asked their names, a man approached them, coming down the railroad track, and being asked his name, answered "Henry Williams." Pugh then rose to his feet and said, "Hold on Henry, I want to see who you are." The man then jumped from the railroad track, and ran, closely pursued by Pugh; and, as Pugh was in the act of seizing or striking him, he turned and shot as he ran, and was immediately fired at twice by Pugh. They had then run about 50 yards, and Laprade had gone across to intercept the man at a sharp turn in the road, and he immediately fired at the man, who continued to run, and was about 40 or 50 feet distant. The man escaped, and Laprade returned to the assistance of Pugh, who was shot in the bowels. A pistol was found on the ground the next day, which was identified as the property of the defendant. Mose Howard, for whom the policeman had a warrant of arrest, was arrested on suspicion a few days after the shooting; and he was kept in confinement until the arrest of the defendant, some two months or more afterwards. A detective officer, belonging to the police force of the city of Montgomery, was "put on the case," and he kept the defendant's track, following him until he succeeded in arresting him in _____ county _____ miles distant from Montgomery, nearly two months after the commission of the offense.

The bill of exceptions purports to set out all the evidence, but does not state the order in which it was introduced. The testimony of Laprade is first test out, and the exception reserved by the defendant to the ruling of the court as to the proper practice in cross-examining a witness for the purpose of contradicting or impeaching him, as to which ruling the opinion states the material facts. The solicitor asked the witness if the defendant was not acquainted with said Pugh, the deceased, to which the witness answered affirmatively, and exceptions were duly reserved by the defendant to the allowance of this question and answer. The testimony as to the finding of the pistol, and its identification as the property of the defendant, is next set out in the bill of exceptions, after which it thus proceeds "The state introduced William Pickett, a negro, as a witness to prove declarations of the defendant on the Sunday morning after the shooting, and relating to it; and asked the witness if any such declarations were made to him. The defendant objected to the question, on the ground that extrajudicial declarations were not admissible until there was proof of the corpus delicti by independent witnesses. The court overruled the objection, because there was independent proof of the corpus delicti, and allowed the witness to answer the question; to which ruling the defendant excepted." The witness then testified, in substance, that on the Sunday morning after the shooting, about sunrise, the defendant came to his house on the Harris place, about _____ miles distant from the city of Montgomery, and asked him and his wife to dress his left hand, which was wounded and bleeding; and that he told them, while they were dressing his hand, that he had shot a policeman in Montgomery the night before, and that the policeman's mate had shot his pistol out of his hand and wounded it, he being left-handed. Several other witnesses were introduced by the state, who lived at different distances from the city on the same road, and each of whom testified to an interview or conversation with the defendant on the same or successive days, in which the defendant related, with more or less detail, the circumstances of his difficulty with the policeman on Saturday night; telling one that the pursuing policeman was about to strike him with his club when he shot; and another that he believed the policeman would have killed him if he had not shot; but the name of the policeman was not mentioned in any of these conversations. The bill of exceptions contains a subsequent recital as follows: "Before closing its case, the state had introduced evidence tending to show that the death of said Pugh resulted from the wound received by him on the night of July 31, 1886;" and proving the venue.

The state offered to read in evidence an indictment pending against the defendant in the city court of Montgomery charging him with an assault with intent to murder, and, in connection therewith, the record of the court showing that a forfeiture had been taken against him and the sureties on his bond, and an alias capias ordered, which had been issued, and was in the hands of the sheriff at the time the deceased was shot; and in this connection, further, the testimony of one Murphy, a policeman of the city of Montgomery, to the effect that the surety on the defendant's bond had offered him a reward for the arrest of the defendant, and that he had informed said Pugh and Laprade of this fact." The defendant objected to the admission of each part of this evidence, on the ground that it was irrelevant, immaterial, and related to another distinct prosecution against him, and he duly excepted to the...