Hawkins v. State, 5 Div. 319.
| Citation | 195 So. 765,239 Ala. 532 |
| Decision Date | 04 April 1940 |
| Docket Number | 5 Div. 319. |
| Parties | HAWKINS v. STATE. |
| Court | Supreme Court of Alabama |
Rehearing Denied May 9, 1940.
Certiorari to Court of Appeals.
Petition of Ben Hawkins for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case styled Hawkins v. State, 195 So. 762.
Writ denied.
Jacob A. Walker, of Opelika, and Robt. S. Milner, of Dadeville, for the motion.
Thos S. Lawson, Atty. Gen., opposed.
Appellant on this certiorari has earnestly contested the soundness of the holding by the Court of Appeals in this case following Bowling v. State, 18 Ala.App. 231, 90 So. 33, that the defendant cannot show that before the occurrence of the act charged to be an assault to murder, he asked a deputy sheriff for police protection for his place of business after having heard of certain threats which the assaulted party was said to have made.
Prof Wigmore in the third volume of his work on Evidence, pages 712, 713 and 714, makes a strong arraignment against the holding that such evidence is not admissible, and has an extensive note showing the attitude of the various state cases on the subject. Most of them hold that the evidence is not admissible. Texas is sometimes referred to as holding that the evidence is admissible, citing, Nelson v. State Tex.Cr.App., 58 S.W. 107; Poole v. State, 45 Tex.Cr.R. 348, 76 S.W. 565; Powers v. State, 88 Tex.Cr.R. 457, 227 S.W. 671. But a different rule prevails there now, and it is there held, as elsewhere, that the evidence is not admissible. Woods v. State, 115 Tex.Cr.R. 373, 28 S.W.2d 554; Watt v. State, 90 Tex.Cr.R. 447, 235 S.W. 888.
Judge Mayfield wrote for the Court to the exclusion of such evidence, recognizing that the rule in Alabama is fixed. Maddox v. State, 159 Ala. 53, 48 So. 689. Indeed, the earlier cases in this Court support the rule of exclusion, and none oppose it. Stewart v. State, 63 Ala. 199; Berney v. State, 69 Ala. 220; Martin v. State, 77 Ala. 1; Birdsong v. State, 47 Ala. 68; Burns v. State, 49 Ala. 370. And so does Mr. Wharton, who is accused by Prof. Wigmore of being the author of the erroneous theory. 1 Wharton on Criminal Evidence (11th Ed.) 791. The Florida court also holds that it should be excluded. Fields v. State, 46 Fla. 84, 35 So. 185; as does also Mississippi by a divided court, Brice v. State, 167 Miss. 255, 148 So. 348; Id., Miss., 150 So. 662, and many other state courts, whose opinions are cited in the Florida case.
The case of Davis v. State, 188 Ala. 59, 66 So. 67, is not opposed to the views which have been so generally approved.
We think the other contentions made on this application are sufficiently and correctly dealt with by the Court of Appeals. We find no error in that opinion of which petitioner here complains.
Writ denied.
On Rehearing.
Application for rehearing overruled.
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Smith v. State
...on its own merits. Anderson v. State, 209 Ala. 36, 95 So. 171; Hawkins v. State, 29 Ala.App. 221, 195 So. 762, cert. denied, 239 Ala. 532, 195 So. 765. to defendant, and of which there is no legal proof.' Coleman v. State, 87 Ala. 14, 6 So. 290; Eaton v. State, 278 Ala. 224, 177 So.2d 444; ......
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Bland v. State of Alabama
...471, 93 So. 46, cert. den., Ex parte Mitchell, 208 Ala. 699, 93 So. 923; Hawkins v. State, 29 Ala.App. 221, 195 So. 762, cert. den. 239 Ala. 532, 195 So. 765. We think that the trial judge had the better opportunity to judge the prejudicial effect of the above statement, in the context in w......
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Williams v. State, 6 Div. 603
...the State's objections and refused to allow defense counsel to examine Sergeant Price on these matters. The "fixed," Hawkins v. State, 239 Ala. 532, 533, 195 So. 765 (1940), and "correct rule," Espey v. State, 270 Ala. 669, 673, 120 So.2d 904 (1960), is stated in Jones v. State, 181 Ala. 63......
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Wyatt v. State
...36, 5 So. 443; Funderburk v. State, 145 Ala. 661, 39 So. 672; Hawkins v. State, 29 Ala.App. 221, 195 So. 762, certiorari denied 239 Ala. 532, 195 So. 765. The above principle, as applied to the developed evidence, in our opinion necessitates approval of the lower court's action in denying a......