Hardaman v. State

• Decision Date: 04 February 1919
• Docket Number: 6 Div. 528
• Citation: 17 Ala.App. 49,81 So. 449
• Parties: HARDAMAN v. STATE.
• Court: Alabama Court of Appeals

81 So. 449

17 Ala.App. 49

HARDAMAN v. STATE.

6 Div. 528

Court of Appeals of Alabama

February 4, 1919

On Rehearing, March 18, 1919

Further Rehearing Denied April 15, 1919

On Rehearing.

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Bob Hardaman was convicted of manslaughter in the first degree and he appeals. Reversed and remanded.

Pinkney Scott, of Bessemer, for appellant.

F. Loyd Tate, Atty. Gen., and David W.W. Fuller, Asst. Atty. Gen for the State.

BROWN P.J.

This is the third appeal in this case. Hardaman v. State, 14 Ala.App. 27, 70 So. 961; s.c., 78 So. 324. Some of the questions now presented were treated on the last appeal, and we shall not treat them again.

The original subpoena docket kept by the clerk of the court in the discharge of his official duties, or by the sheriff in the discharge of his official duties, was competent evidence and admissible to show the issuance and return of subpoenas without accounting for the original subpoena. Stevenson v. Moody, 85 Ala. 33, 4 So. 595; Steed v. Knowles, 97 Ala. 573, 12 So. 75; Code 1907, § 3983.

It was competent to prove the declarations of the witness Echols as he was leaving the community, to the effect that he was going to enlist in the army. Such a declaration was of the res gestae of his leaving, and tended to explain and give character thereto. Harris v. State, 96 Ala. 24, 11 So. 255; Kilgore v. Stanley, 90 Ala. 523, 8 So. 130; Maddox v. State, 159 Ala. 53, 48 So. 689; Central of Ga. R.R. Co. v. Bell, 187 Ala. 541, 65 So. 835.

The sufficiency of the predicate to authorize the introduction or proof of the testimony of the witness Echols on the former trial was primarily for the trial court, and if there was any doubt as to its sufficiency at the time the testimony was given, this doubt is entirely removed by the testimony of the witness Herring, showing that the last time he saw him he was dressed in the uniform of the army, and that he had since read a letter from him to his sister, mailed in France. Under the authorities in this state, the predicate authorized the introduction of the testimony of the witness Echols on the former trial. Hardaman v. State, 78 So. 324, and authorities there cited.

It was permissible for the prosecution to prove the statement of the defendant's daughter Zuma, made to the defendant in response to the defendant's declaration that he had killed Dickson, to the effect that defendant had killed Dickson for nothing, as a predicate for showing the defendant's silence in the face of this accusation ( Rowlan v. State, 14 Ala.App. 17, 70 So. 953) and the fact that the prosecution failed to prove that defendant made no reply to this accusation did not render this testimony subject to the objection that it was "illegal, irrelevant, immaterial, and hearsay testimony," or "a declaration of a person without authority to make it," the ground assigned in the motion to exclude. The predicate being a proper one, the court could not assume that the missing link would not be supplied by some other witness to be examined. If the motion to exclude had been rested upon the specific ground that the state had not shown that the defendant was silent, in the absence of a statement from the solicitor that he would offer further proof showing silence, the court no doubt would have granted the motion. Cain v. State, 77 So. 453; Johnson v. State, 74 So. 972.

In the showing made for the absent witness, Zuma Hardaman, no predicate was laid to impeach her testimony by contradictory statements, and in the absence of such predicate, the declaration of this witness to the defendant, to the effect that defendant had killed Dickson for nothing, was not admissible as impeaching testimony. Gafford v. State, 125 Ala. 1, 28 So. 406.

In the light of the evidence tending to show that deceased was in the act of assaulting the defendant's daughter, and when discovered in the act made hostile demonstrations against the defendant with a deadly weapon, the evidence of the relation of the deceased and his associates with the defendant's daughters was admissible as tending to shed light on the controverted question as to who was the aggressor in the fatal rencontra (Gafford v. State, 122 Ala. 54, 25 So. 10), and was admissible on the question of motive (Hardaman v. State, supra).

The court committed reversible error in denying to the defendant the right to show by the witness Dr. Williams that deceased, on the afternoon before the killing that night, and as he was in the act of starting to Hardaman's said that he was going there for the purpose of seeing this girl, and in connection with his declarations exhibiting his pistol and saying that he was going to take that along for the purpose of protecting himself. These were "verbal acts indicating a present purpose and intention," and tended to illustrate and give character to the deceased's conduct on the night he was killed. Burton v. State, 115 Ala. 1, 22 So. 585; Rogers v. State, 75 So. 264.

The solicitor sought to show by the witness Hickman, on cross-examination and over the objection of the defendant, that Mrs. Hardaman, the wife of the defendant, "Come to John's to get a warrant against the defendant for pulling a pistol or gun or rifle or something on her, and making her throw out that stuff out of the crib," but the witness denied having any knowledge of any such fact, and, notwithstanding this, in the closing argument to the jury, the solicitor made this statement:

"Talk about a man like Bob Hardaman, who took his gun and forced his wife to pour out whisky he had brought there, and converted his house into a blind tiger, and warehouse, and then his poor old wife had to resort to the officers of the law to keep him from killing her; say then you would turn a man loose like that?"

The testimony sought to be brought out by the solicitor's question to the witness Hickman was wholly irrelevant to any issue in the case, and the statement of the solicitor was not justified by any evidence in the case, or by any remark or argument set out in this record as being made by the defendant's counsel in his behalf. The statement of the solicitor was the statement of a fact outside of the evidence and the court committed reversible error in overruling defendant's objection thereto, and in refusing to exclude it on the defendant's motion. Cross v. State, 68 Ala. 476; B.R.L. & P. Co. v. Drennen, 175 Ala. 349, 57 So. 876. Ann.Cas.1914C, 1037; Wilhite v. Fricke, 169 Ala. 76, 53 So. 157; Jones v. State, 170 Ala. 76, 54 So. 500; City of Tuscaloosa v. Hill, 14 Ala.App. 541, 69 So. 486.

Both the judgment of conviction and sentence shown by the minute entry of the trial court, incorporated in the record here, are insufficient to warrant the defendant's incarceration; and, if there was no other error in the record, the judgment would have to be reversed for this reason. Roberson v. State, 123 Ala. 55, 26 So. 645.

For the errors pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

On Rehearing.

In the application made by the Attorney General, we are urged to set aside the...