Gilbert v. State
| Decision Date | 08 April 1924 |
| Docket Number | 6 Div. 322. |
| Citation | 20 Ala.App. 28,100 So. 566 |
| Parties | GILBERT v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Dismissed. June 3, 1924.
Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.
Lon alias Alonzo, Gilbert was convicted of manslaughter in the first degree, and appeals. Reversed and remanded.
Mathews & Mathews, of Bessemer, for appellant.
Harwell G. Davis, Atty. Gen., and O. B. Cornelius, Asst. Atty. Gen for the State.
The homicide complained of in this case appears to have occurred in the year 1909. The indictment against this defendant charging him therewith was not preferred until the February term 1922, of the circuit court of Jefferson county, in the Bessemer division thereof. The deceased named in the indictment was one Bettie Price, and the evidence discloses that she was a young girl just budding into womanhood at the time she was killed. There is no contention or insistence upon the part of the state that the defendant intended to kill the young girl, the said Bettie Price; to the contrary, it clearly appears from the undisputed evidence, that friendly terms or relationship existed at that time between the defendant and deceased and her entire family, and that no trouble had ever occurred between them. The state did contend, however, that the fatal shot was fired by defendant and that he so fired said shot with the intent or purpose to unlawfully and with malice aforethought kill a man by the name of Jim Hopp or Hopkins, or Snow, who was then and there present.
The law is very certain that if a man kills one person, where the intent was to kill another, the guilt of the slayer is the same as if he had killed the person intended. In other words, the character of the offense, if any, is the same in the eyes of the law that it would have been if the fatal shot had killed the identical person for whom it was intended. To state it differently, if the defendant fired the shot which resulted in the death of the deceased, he would be guilty or innocent of the offense charged, the same as if the fatal shot had killed Hopp, the person for whom it was designed. Therefore, in the instant case, under the testimony offered, the real inquiry was whether or not the defendant was justified in shooting at the said Jim Hopp, alias Hopkins, alias Snow, and if he was not so justified, under his plea of self-defense, the fact that he killed Bettie Price instead of the man Hopkins, the intended victim, could avail him nothing.
During the trial of this case, the testimony was permitted by the court, to take a very wide, and we think a most unusual course. As a result, innumerable objections were interposed and exceptions reserved to the rulings of the court upon the admission and rejection of the testimony.
We will not undertake to discuss each of these exceptions, many of which were without merit. It was clearly error however to permit the state to prove by its witness, Mary Ann Hudson, on direct examination, the purported confession of the defendant wherein the witness was permitted to testify, over the timely objection of defendant that "the defendant told her, after the girl was killed that he shot her." There was no semblance of a predicate proven by the state authorizing the introduction of this testimony, nor was there any attempt made to show that such confession was freely and voluntarily given. The oft-announced and well-recognized rule is that confessions in criminal cases are prima facie inadmissible, and, unless the objection is waived, they will not be received in evidence, unless the court is satisfied by evidence that the confession was entirely voluntary. Carr v. State, 17 Ala. App. 539, 85 So. 852. See, also Poarch v. State (Ala. App.) 95 So. 781.
There was some evidence tending to show the flight of the defendant from that particular neighborhood after the alleged commission of the offense; the testimony showing without dispute that defendant went into an adjoining county. But there is no testimony that the defendant changed his name, and whether or not he passed himself off as a preacher in Fayette county was irrelevant, and inadmissible and defendant's numerous objections to this line of testimony should have been sustained, as the inquiry could in no manner shed any light upon the issues involved in this case, and its tendency was calculated to prejudice the jury unduly against the defendant.
By its witness, Mary Ann Hudson, the state, over the objection of defendant, was allowed to ask, "What became of Lon [the defendant] after the shooting?" The witness answered "He left the country; he left out." Over like objection she also testified: She further testified: ...
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