Glover v. State

• Decision Date: 14 June 1917
• Docket Number: 8 Div. 14
• Parties: GLOVER v. STATE.
• Court: Alabama Supreme Court

76 So. 300

200 Ala. 384

GLOVER v. STATE.

8 Div. 14

Supreme Court of Alabama

June 14, 1917

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

Volley Glover, alias, etc., was convicted of murder in the first degree, and appeals. Affirmed.

A.A Williams, of Florence, for appellant.

W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

SAYRE J.

Defendant named no person in the statements admitted in evidence against him and made the subject of argument by his counsel on this appeal; but, in the circumstances, it was a question of fact, to be determined by the jury, whether the threat to be implied therefrom was intended for or directed against the deceased. Ford v. State. 71 Ala. 385; Jordan v. State, 79 Ala. 9; Knight v. State, 160 Ala. 58, 49 So. 764. Defendant's statements were a clear declaration of readiness for a combat with some definite, though unnamed, person, in which deadly weapons would be used; and these facts, which the evidence went to prove, viz., that defendant had had a difficulty with deceased, on account of which he harbored ill will, and that a few minutes later he sought a difficulty with deceased, in which he used the weapon to which his statements referred--these tendencies of the related evidence--brought the testimony to which defendant objected within the rules of the cases cited above.

The court sustained the state's objection to defendant's question, put to the witness Stutts, asking whether or not Wash Wright, the deceased, was in the habit of carrying a pistol. The objection was that the question called for illegal, incompetent, and immaterial evidence, and that, if deceased had such habit, it had not been shown that defendant knew it. There was no error in the ruling. The testimony for the defendant tended to make out a case of self-defense, and as part and parcel of that defense that deceased was in the act of drawing a weapon when defendant fired the fatal shot. Without denying that, in connection with evidence tending to show that defendant knew deceased was in the habit of carrying a pistol, this testimony would have been admissible under the authority of Wiley v. State, 99 Ala. 146, 13 So. 424, Naugher v. State, 116 Ala. 463, 23 So. 26, and Cawley v. State, 133 Ala. 128, 32 So. 227, cases cited by appellant, it will suffice to answer the charge of error on this point to note that, if the jury accepted the state's evidence to the effect that deceased had no weapon, the evidence sought by defendant would have been admissible for the limited purpose only of showing the reasonableness of defendant's hostile interpretation of a movement on the part of deceased, still at the time when the question was asked there was before the court no testimony tending to show that defendant knew of the alleged habit. Of course defendant could not be expected to elicit all his evidence on the point by one question; but the testimony sought was conditionally admissible, defendant's attention was drawn to the specific cause of objection, and, to put the court in error, he should have indicated to the court his purpose and his ability--should have offered--to furnish evidence of the necessary fact, the missing link, upon some evidence of which the admissibility of the evidence in question depended. This, we believe, is the practice indicated by our other cases on the subject. Sims v. State, 139 Ala. 74, 36 So. 138, 101 Am.St.Rep. 17; Rodgers v. State, 144 Ala. 32, 40 So. 572; Bluett v. State, 151 Ala. 41, 44 So. 84. Defendant afterwards testified to the habit of deceased and his (defendant's) knowledge of it; but error in the court's previous ruling cannot be based upon testimony of which the court had no knowledge or notice at the time of the ruling in question.

The state's witness Eaton testified that he had known deceased a long time, that he knew his character for peace and quiet in the community where he lived, and that he was not...