Fuqua v. State

• Decision Date: 30 June 1911
• Parties: FUQUA v. STATE.
• Court: Alabama Court of Appeals

56 So. 751

2 Ala.App. 47

FUQUA v. STATE.

Court of Appeals of Alabama

June 30, 1911

On Application for Rehearing, November 23, 1911.

On Application for Rehearing.

Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.

Hateras Fuqua was convicted of murder in the second degree, and he appeals. Affirmed.

S.W. Frierson, and Paul Hodges, for appellant.

Robert C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen for the State.

DE GRAFFENRIED, J.

The defendant was indicted for murder in the first degree, and was convicted of murder in the second degree and sentenced to the penitentiary.

It appears from the bill of exceptions that one Rhoda Shoulders at a previous trial of the case, had testified as a witness for the state. This witness was not present during the trial at which the defendant was convicted, and during the progress of the trial the solicitor asked one Owens while on the stand, if he knew where said Rhoda was. The witness replied "that he did not know where Rhoda Shoulders was; that he heard she was out of the state; that he did not know for certain; that he could not find her." The solicitor then remarked that "it does not make any difference; the defendant admits that she is out of the state;" to which one of the defendant's attorneys replied: "We admit that she is out of the state." All this occurred in open court during the progress of the trial, in the presence of the court and jury and while a witness in the case was being examined by the solicitor in behalf of the state. The court therefore committed no error in admitting secondary evidence of the testimony of the witness Rhoda given on the former trial.

The solicitor thereupon placed upon the stand, as a witness to prove the said testimony of said Rhoda, the official court stenographer, who testified that he was present at the trial at which said Rhoda testified; that he took down her testimony in shorthand, and had his stenographic notes, from which he could read her testimony, but that he had never transcribed her testimony from the stenographic notes, and had no transcript of her testimony. Thereupon the defendant objected to the reading by said witness of the testimony of said Rhoda from said notes as evidence in the case. The court overruled the objection, and stated that if the court came to the conclusion that such witness was incompetent it would exclude his evidence from the jury. The witness then proceeded in narrative form to read, from his stenographic notes, the evidence of said Rhoda. Before the said witness had concluded said reading, the court interrupted the witness, and had said witness to stand aside, and excluded from the jury all of the evidence of said witness. Thereupon the solicitor introduced as a witness one Owens, who testified that he was present at the trial in which said Rhoda testified, and heard her testify. The solicitor then asked the witness to state his recollection of Rhoda's testimony. The defendant objected to this question, on the ground that there had not been a proper predicate laid for the introduction of the testimony of said Rhoda, and on the further ground that the stenographic notes of her testimony is the highest and best evidence of her testimony. The court overruled the objection and the defendant excepted.

The court committed no error, of which the defendant had the right to complain, in excluding from the jury the evidence of the stenographic reporter. That evidence was admitted against the defendant's objection, and, as it was evidence to the admission of which the defendant objected, he cannot be heard afterwards to complain of its exclusion from the jury. It is also manifest that the court committed no error in admitting evidence of the testimony of the witness Rhoda on the former trial by a witness who heard her testify. By an admission made by counsel representing the defendant, made in open court during the trial, the witness was shown to be absent from the state. The court, on objection of the defendant, had excluded the evidence of the stenographer, by whom the state proposed to have her testimony read from his stenographic notes. The witness Owens was certainly competent to testify to his recollection of her testimony on the previous trial. Burton v. State, 115 Ala. 1, 22 So. 585.

Neither did the court commit error in sustaining the objection of the state to the question propounded by the defendant to the witness Nance. The defendant had repeatedly asked this witness this same question, and the witness had repeatedly answered the question. As the question was merely a repetition of a question which had previously been asked and answered, the court properly sustained the solicitor's objection to the question when last asked. Evans v. State, 109 Ala. 11, 19 So. 535; Western Union Tel. Co. v. Merrill, 144 Ala. 618, 39 So. 121, 113 Am. St. Rep. 66.

In prosecutions for murder, it is always permissible for the state to prove that the defendant entertained feelings of hostility toward the deceased, and for this purpose the fact but not details, of recent former difficulties between defendant and deceased, and recent threats made by defendant against deceased, may be shown. In the present case the state proved a former difficulty between defendant and deceased, and asked the witness by whom the difficulty was shown, referring to the time of such difficulty, or immediately thereafter, the following question: "After the difficulty, did you hear Hatrass say anything about what he was going to do in regard to killing a man?" The defendant objected to the question and answer, upon the ground that the question was not limited to killing Leonard Fuqua. The court overruled the objection, and the defendant excepted, and the witness replied "that the defendant just said there was a man out that he had to kill if he did not quit bothering him; that that was after the ...