Hall v. State

• Decision Date: 08 May 1923
• Docket Number: 8 Div. 19.
• Citation: 19 Ala.App. 229,96 So. 644
• Parties: HALL v. STATE.
• Court: Alabama Court of Appeals

96 So. 644

19 Ala.App. 229

HALL v. STATE.

8 Div. 19.

Court of Appeals of Alabama

May 8, 1923

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

Erwin Hall was convicted of assault with intent to murder, and he appeals. Affirmed.

Chas. T. Grimmett, of Huntsville, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

FOSTER J.

The defendant, appellant, was convicted of assault with intent to murder.

The state's evidence tended to show that the defendant went to the home of his brother, Emmet Hall, and provoked a difficulty with him; that Ina Hall, Emmet's wife, was there, and begged defendant to stop beating Emmet and leave that after "finishing" with Emmet, defendant turned upon Ina Hall, cursed her, threatened to kill her, struck her on the head several blows with a hoe handle and with a kingbolt of a wagon, knocked her down, and beat and bruised her badly. Defendant contended that he did not strike Ina Hall, but that his wife, Abbie Hall, inflicted the wounds Ina received. Abbie Hall and other witnesses contradicted this statement of defendant. Defendant interposed a general objection to the evidence of the difficulty with Emmet Hall. The evidence was not patently illegal and incompetent therefore a general objection was not sufficient.

But the evidence was admissible as part of the res gestæ. The fight with Emmet and the attack upon Ina Hall, occurring at the same time and place, were so intimately connected as to be parts of the same transaction. Dixon v. State, 128 Ala. 54, 29 So. 623.

Mrs. Abbie Hall, a witness for the state, was asked by defendant on cross-examination if she did not state to Erwin Hall at a certain time and place that she struck Ina Hall with a stick on the occasion of the fight between Emmet Hall and defendant, and she answered in the affirmative. On redirect examination the witness was allowed to explain, over the objection of defendant, that he threatened to kill her if she did not make that statement. To refuse to allow her under such circumstances to explain why she made the statement, by relating what the defendant said to her at the time, would violate well-established rules.

"Common justice requires that, first calling her attention to the subject, she should have an opportunity to recollect the facts, and, if necessary, to correct the statements already made, as well as by a re-examination to explain the nature, circumstances, meaning, and design of what she is proved elsewhere to have said." Greenl. Ev. §§ 462, 467; Johnson v. State, 102 Ala. 1, 16 So. 99.

And she may be asked what induced her to make the statement to the defendant. Campbell v. State, 23 Ala. 76; Lewis v. Post, 1 Ala. 69; King v. State, 13 Ala. App. 91, 69 So. 347.

Furthermore it is a well-established rule that, where one party calls for a part of a conversation, it is competent for the other party to call for all that was said in that conversation. Wright v. State, 136 Ala. 146, 34 So. 233. The testimony was properly admitted.

Odell Hall was sworn as a witness for the state, and "defendant objected to this child being allowed to testify as a witness on the ground that she was incompetent on account of her age." The court interrogated the witness as follows:

"Q. What is your name? A. Odell Hall. Q. How old are you? A. Eight years old. Q. Who is your father? A. Emmet Hall. Q. Who is your mother? A. Ina Hall. Q. Who made you? A. God. Q. Have you been to church and Sunday School? A. Yes, sir. Q. Do you know the difference between telling a story and telling the truth? A. Yes, sir. Q. Is it right to tell the truth or a story? A. It is right to tell the truth. Q. Is it right or wrong to tell a story? A. Wrong. Q. Do you know what would happen to you if you told a story? A. Yes, sir; you will go to torment."

In passing on the competency of children as witnesses, much must be left to the sound discretion of the trial judge, "and it is only in strong cases the ruling of the court admitting them as witnesses will be reversed." White v State, 136 Ala. 58, 34 So. 177; Beason v. State, 72 Ala. 191; Castleberry v. State, 135 Ala. 24, 33...