Fonville v. State

• Decision Date: 07 January 1891
• Citation: 8 So. 688,91 Ala. 39
• Parties: FONVILLE v. STATE.
• Court: Alabama Supreme Court

8 So. 688

91 Ala. 39

FONVILLE v. STATE.

Supreme Court of Alabama

January 7, 1891

Appeal from circuit court, Butler county; JOHN P. HUBBARD, Judge.

The appellant was indicted, tried, and convicted for an assault with intent to murder one Comer. The evidence in behalf of the state and the defendant is in direct conflict as to the circumstances of the alleged assault. The evidence for the state tended to show that, while the defendant was standing on the street in Georgiana, in Butler county, the said Comer passed by. The defendant remarked to him, "I am not afraid of you, nor any other G___ d___ white man. I dare you to resent it." That the defendant followed the said Comer up, and finally struck him in the face with his hand in which there was a knife, and then cut him. The testimony for the defendant tended to show that the said Comer and one Jackson got into a dispute, and, the defendant passing by said Jackson asked defendant if a man did not have the right to protect his own house, and, upon the defendant answering that he did, the said Comer struck the defendant on the head with a knife, and then on his face, cutting him every time and that thereupon the defendant turned and cut the said Comer in self-defense. On the examination of two different state witnesses the defendant, on cross-examination, asked them: "Did Comer have a difficulty with another party at Georgiana on the same day at or near the time of the difficulty with the defendant, in which Comer was said to have killed a man named York?" Upon objection to this question by the state, the court sustained the objection, and the defendant duly excepted. When the solicitor asked one of the witnesses, in reference to the two absent witnesses whose testimony was admitted on a showing, "Are they white or colored, and how old are they?" the bill of exceptions states that "the defendant objected to this question because it called for an answer that was irrelevant and illegal. The court overruled the objection, and the defendant excepted." The other rulings on the evidence are sufficiently set forth in the opinion of this court. There was also evidence tending to show that at the time of the assault the defendant was intoxicated. Upon the evidence, as adduced, the defendant requested the court to give the following written charges, and duly excepted to the refusal to give each one: "(1) If the testimony shows two theories, one tending to guilt and the other innocence, and both are reasonable, the jury must accept that theory consistent with innocence, and acquit. (2) The jury may look to the fact, if it be a fact, that the defendant was under the influence of intoxicating liquor in determining the question of intent, and, if they believe that his conduct at the time of the difficulty was inspired by his condition, and not by malice, then they cannot find him guilty of the offense charged; and if they have a reasonable doubt on this subject they cannot find the defendant guilty of the offense of assault with intent to murder. (3) If the testimony points in two directions,-one to guilt, and the other that the defendant is not guilty,-and both are equally reasonable, the jury is bound to accept that which points to innocence, and must acquit." Code Ala. § 2762, provides that, "if the judge fail or refuse to sign a bill of exceptions, the point or decision and the facts being truly stated, he is guilty of a high misdemeanor in office; and the supreme court must receive such evidence of the facts as may be deemed by it satisfactory, and proceed to hear the cause as if the bill had been signed by the court."

J. M. Whitehead, for appellant.

W. L. Martin, Atty. Gen., for the State.

COLEMAN J.

The defendant was convicted of an assault with intent to murder. Acts and declarations, to be admitted as res gestæ, must not only be substantially contemporaneous with the main fact under consideration, but must be so closely connected with it as to illustrate its character. Railroad Co. v. Hawk, 72 Ala. 117; Masterson v. Phinizy, 56 Ala. 339; Gassenheimer v. State, 52 Ala. 318. It is not shown what connection the former difficulty inquired about between the witness Comer and some other party had with the difficulty between the defendant and the witness Comer, or how the former tended to explain or characterize the assault of the defendant on the witness in the latter. The objection to the question relative to a different difficulty was properly sustained.

For the purposes of a trial, the state admitted that two absent witnesses summoned by defendant, if present, would testify to certain stated circumstances connected with the assault for which the defendant was being tried. During the examination of the witnesses the solicitor inquired of one if he was acquainted with the two absent witnesses concerning whom the admissions had been made by the state, and, if so, "were they white or colored, and how old were they?" It is the law of this state that the admission of illegal or irrelevant evidence against the objecton of a defendant on trial for a criminal offense is a reversible error, unless it affirmatively appears that no injury resulted therefrom. Maxwell v. State, 89 Ala. 164, 7 South. Rep. 824; Marks v. State, 87 Ala. 99, 6 South. Rep. 377; Vaughan v. State, 83 Ala. 55, 3 South. Rep. 530; Williams v. State, 83 Ala. 16, 3 South. Rep. 616; Mitchell v. State, 60 Ala. 26. To inquire and prove that the absent witnesses were negroes certainly was irrelevant, unless the court judicially knew the color of the witnesses affected their credibility. If it was judicially known that as a race the witnesses were prima facie unworthy of belief the question was both relevant and legal. We cannot judicially affirm of any race of people, of whatever color or previous condition, as St. Paul did of the Cretians, that they were "always liars." Under the principle above declared, the objection to such a question, properly made and reserved, should be sustained. The law is well settled that a general objection to evidence, a part of which is admissible, and a part objectionable, may be overruled. The objection should point out and be limited to the part which is illegal. Hayes v. Woods, 72 Ala. 93; 3 Brick. Dig. p. 443, §§ 570, 571; Warren v. Wagner, 75 Ala. 188. It was entirely competent to inquire as to...