Fuller v. State

• Decision Date: 06 July 1906
• Citation: 147 Ala. 35,41 So. 774
• Parties: FULLER v. STATE.
• Court: Alabama Supreme Court

41 So. 774

147 Ala. 35

FULLER v. STATE.

Supreme Court of Alabama

July 6, 1906

Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.

"To be officially reported."

Will Fuller was convicted of murder, and appeals. Affirmed.

The defendant was indicted with Henry Duncan for the murder of Allen Fuller by shooting him with a gun. A severance was demanded by this defendant, and he was put upon his trial convicted, and sentenced to the penitentiary for life. It was shown on the examination of witnesses by the state that when the defendants were arrested some 25 or 30 shells were found on him; that some were gin shells and some were rifle shells some were buckshot shells and some were not; but the buckshot shells were marked "New Club Shells." It was also shown that two shots were fired at the time of the killing and two empty shells were found near the place of the killing, marked and branded as above set out. These shells were offered in evidence over the objection of the defendant. Henry Duncan was introduced by the defendant, and on cross-examination the state was permitted, over the objection of the defendant, to ask him the following question "Were you not convicted of aiding prisoner to escape from jail, the said prisoner being charged with murder?" The witness answered: "Yes; I was convicted and sentenced to Pratt Mines for aiding a prisoner to escape from jail, and the prisoner was charged with murder." The solicitor in his argument to the jury said: "You could take that gun which is in evidence, and try the gun on two of the shells in evidence, and put one shell in each barrel of the gun and snap it, and see if it did not make the same impression on the caps of the two shells, and in the same place on the caps, as is made on the caps of the two empty shells in evidence; and I invite you, gentlemen of the jury, to make the experiment when you retire to the room to make up your verdict." The defendant moved the court to exclude these remarks of the solicitor from the jury, but the court declined to do so. The defendant requested the following written charge, which was refused: "I charge you that if you believe, from all the evidence in this case, that Henry Duncan was not guilty of the charge of aiding a prisoner to escape from jail, then you should not consider the fact, as admitted by him, that he was convicted of the charge, in saying whether or not he testified willfully false in this case."

Logan & Fuller, for appellant.

Massey Wilson, Atty. Gen., for the State.

TYSON J.

Under the testimony the shells were sufficiently identified as being those found near the place of the killing. They were, therefore, properly allowed in evidence as tending to show, in connection with other testimony adduced, that defendant fired there on the occasion of the homicide.

Section 4711 of the Code of 1896 makes it a felony for any person to aid or attempt to aid any prisoner to escape from jail confined therein under a charge or conviction of felony. Section 1795 provides that "no objection must be allowed to the competency of a witness because of his conviction for any crime except perjury, or subornation of perjury, but if he has been convicted of other infamous crime, the objection goes to his credibility." Under section 1796, proof of the conviction may be made by the oath of the witness without production of the record. ...