Freeman v. State

• Citation: 1 So.2d 917,30 Ala.App. 99
• Decision Date: 25 February 1941
• Docket Number: 6 Div. 574.
• Parties: FREEMAN v. STATE.
• Court: Alabama Court of Appeals

1 So.2d 917

30 Ala.App. 99

FREEMAN v. STATE.

6 Div. 574.

Alabama Court of Appeals

February 25, 1941

Rehearing Denied March 18, 1941.

F.F. Windham, of Tuscaloosa, for appellant.

Thos. S. Lawson, Atty. Gen., and Francis M Kohn, Asst. Atty. Gen., for the State.

SIMPSON Judge.

The appellant was convicted of murder in the second degree and appeals to this court.

It was not controverted that the deceased was murdered by L.C Freeman, son of appellant, by shooting him with a pistol. L.C. Freeman was indicted, tried and convicted at a previous term of court. Thereafter, at a subsequent term of court, an indictment was preferred against appellant upon which he was tried and convicted, and from which judgment of conviction this appeal results.

This prosecution was rested upon the evidence that the appellant aided and abetted in the murder by giving his son, L.C Freeman, the pistol with which deceased was killed and telling him to "take this gun (the pistol) and go up there and kill him (deceased). I've got white friends to get you out." It was proven for the State that appellant first offered his son a knife, but, when his son said he "didn't need any knife", appellant gave him the pistol, accompanied by the above-quoted words, "take this gun and go up there and kill him" etc., whereupon his son immediately left (appellant's home) and went to the Coaling station and killed the deceased with the pistol. This testimony was given by two witnesses, one the wife of another of appellant's sons. Other State's witnesses, who saw the shooting, testified that immediately upon killing the deceased, L.C. Freeman met the appellant about fifty yards from the scene and told him, "if the law comes after me tell them I am at the house", whereupon, in answer, the appellant said, "Dunk (his son), I know you would do that." Other witnesses testified to the bad reputation of appellant and as to his bad reputation for truth, etc. Such was the evidence for the State, and, if believed by the jury beyond a reasonable doubt, conviction of the appellant was undoubtedly warranted.

The verity of the foregoing testimony was strenuously denied by the appellant and his witnesses, who claimed that appellant knew nothing of the trouble between his son and the deceased, was at work when the shooting occurred, did not give L.C.

Freeman the pistol, and told him nothing. It was further proved for appellant that the principal witnesses against him did not testify at his son's trial but went before a later grand jury and procured his indictment. It was his further contention that his said daughter-in-law so testified against him through malice and that she and others framed the case against him, either through hatred of appellant or his attorney. There was evidence that defendant bore a good reputation in the community and that the reputation for truth, etc., of the daughter-in-law and other State's witnesses was bad.

To the court which must view the entire evidence impartially it is most evident that decision of the question of the guilt of the defendant was for the jury, and jury alone. There was a positive and clear conflict in the evidence and the refusal of the trial court to give for the defendant the requested affirmative charge was proper. To have ruled otherwise, when there was such sharp conflict in the evidence, would have been unwarranted. McMillan v. State, 26 Ala.App. 439, 161 So. 831; Adams v. State, Ala.App., 198 So. 451; Way v. State, 155 Ala. 52, 46 So. 273; Dillard v. State, 27 Ala.App. 50, 165 So. 783.

If the appellant aided or abetted his son, L.C. Freeman, in the unlawful killing of the deceased, it was not essential to the appellant's guilt that he be present when the fatal affair occurred. Hence, special written Charge b, requested by appellant, was properly refused for this reason if for no other. Ferguson v. State, 134 Ala. 63, 32 So. 760, 92 Am.St.Rep. 17; Cantrell v. State, Ala.App., 199 So. 742.

Appellant, through earnest counsel, insists that the conversation between the appellant and his son after the killing, quoted hereinabove, was improperly admitted in evidence, but we think not. Not only does such conversation tend to corroborate the evidence for the State that appellant was an aider or abettor in the killing, but, also, it was of the res gestæ. Statements of the accused, after the commission of the crime, whether exculpatory or incriminatory, made spontaneously, while the mind was still under the influence that controlled it when the event took place--and at such time and place and under such circumstances as to preclude the idea of afterthought, design, or a mere retrospective...