Hayes v. State

• Decision Date: 13 January 1948
• Docket Number: 2 Div. 764.
• Parties: HAYES v. STATE.
• Court: Alabama Court of Appeals

33 So.2d 744

33 Ala.App. 364

HAYES v. STATE.

2 Div. 764.

Alabama Court of Appeals

January 13, 1948

Rehearing Denied Feb. 3, 1948.

Beddow & Jones, Roderick Beddow and Robt. W. Gwin, all of Birmingham, for appellant.

A A. Carmichael, Atty. Gen., and Bernard F. Sykes, Asst. Atty Gen., for the State.

CARR Judge.

The appellant was indicted and convicted for the offense of assault with intent to murder. H. A. Bradford is the party alleged to have been assaulted.

It would be a useless and unnecessary undertaking to attempt to delineate the tendencies of the evidence. We will not do this except when it may be required in order to illustrate or clarify a point under consideration.

It is not disputed in the evidence that the defendant shot Mr Bradford five times with a pistol. At least one of the inflicted wounds was of a serious nature. It is not denied nor controverted that Mr. Bradford shot the appellant one time with a pistol. This infliction also produced a wound that was considered serious. Hence, it is evident that the question of self defense becomes a matter of material moment. On this query, the evidence is in sharp conflict, having reference particularly to the determination of which of the two participants fired the first shot.

When we take into consideration the size of the appeal record, we can say with accuracy that there are comparatively few questions presented for our review.

The alleged assaulted party testified that he had not seen his pistol from the occasion of the affray to the time of the trial. It is evidently apparent, therefore, that he could not have correctly answered this question which was propounded by appellant's counsel: 'Where is the pistol now that you say you had on that truck with you that day?'

Over defendant's timely objections the court allowed the State to introduce in evidence the pistol with which it was claimed the accused did the shooting. There may have been some requirements omitted from the proof to make the article admissible, but none of these were stated as a ground of the objection. Circuit Rule 33, Code 1940 Tit. 7 Appendix; Louisville & N. R. Co. v. Scott, 232 Ala. 284, 167 So. 572; Holcombe v. State, 17 Ala.App. 91, 82 So. 630.

This observation aside, in view of the undisputed evidence in the case, we cannot see how the introduction of this pistol could have in any way harmed the appellant. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.

Mr. Henri Bradford came up to the place of the difficulty with his brother, Mr. H. A. Bradford, and was present at the time of the shooting. On cross examination of the former, defendant's counsel sought to prove in detail the routes he traveled just prior to the time he joined his brother to journey to the point where the shooting occurred. This was not material to the factual issues, and, had it been, the witness disclosed this information fully at a subsequent time in his testimony. George v. State, 240 Ala. 632, 200 So. 602; Norris v. State, 16 Ala.App. 126, 75 So. 718.

The same witness on cross examination was asked these questions, 'Did you have--you say that is your pistol--did you have it registered' and 'Did you have a permit to carry a pistol?' Reference is here made to the weapon with which the assaulted party shot the defendant. It seems to be without dispute that the pistol in question did belong to the witness. Whether or not it was registered or he had a permit to carry it was not conducive to the proof of a pertinent hypothesis that would in any degree influence the factual issues. Martin v. State, 16 Ala.App. 406, 78 So. 322; Taylor v. State, 31 Ala.App. 590, 20 So.2d 239.

Admittedly, the brother whose testimony we are now reviewing shot the defendant twice with a shotgun. This occurred at the place of the main difficulty and was during or just immediately after the pistol firing. Apparently because of the distance between the two or the vantage point the appellant did not suffer any serious injuries as a result of the gunfire. Counsel for the defendant was denied the privilege of ascertaining from the witness whether or not any charges had been preferred against him or his brother because of the shooting. We cannot see how this party should have been required to give answer or explanation of matters concerning which he had no control.

The defendant asked one of his witnesses whether or not he was interested in appellant's behalf. The court sustained the State's objection to this question. This was an attempt to bolster up the testimony of his own witness. O'Rear v. Manchester Lumber Co., 6 Ala.App. 461, 60 So. 462; Parker v. State, 10 Ala.App. 53, 65 So. 90.

Julius Pickett was present at the place of the shooting, and he was called as a witness by the accused. On direct examination he was asked: 'After the shooting, were you brought up here and put in jail?' The court did not require him to disclose this information. However, in the progress of the trial it was subsequently disclosed, without objections, that this witness, along with others who were also present at the scene of the difficulty, was confined in jail at Linden. George v. State, supra; Norris v. State, supra.

The solicitor objected to this question which was propounded to a witness for the defendant: 'Did George make any attempt to flee or get out of the presence of Mr. H. A. Bradford or Mr. Henri Bradford from the time he left the scene of the shooting until he got to Linden?' There was no effort made by the prosecution to show that the accused attempted to evade arrest. In this state of the testimony the defendant could not show that he did not try to flee. Vaughn v. State, 130 Ala. 18, 30 So. 669; Starke v. State, 31 Ala.App. 322, 16 So.2d 426.

We come now to consider the matters which are urged in brief of counsel and which are apparently most potently pressed as a basis for error.

Before entering into a discussion of these insistences we feel that it is appropriate and fitting to observe that we cannot go beyond the record in our quest for facts. Appellant's brief is rather replete with references about which the record has nothing to say, and with evident intent not to mislead the court. This is made convincingly clear by this admission: 'While all the following does not appear in the record, it is brought to the court's attention to show the conditions that existed following the defendant through the trial.' Of course, we cannot accept this tender of information and consider circumstances and conditions which are not reflected by the appeal record.

When the testimony had closed and just prior to argument to the jury, the following proceedings appear:

'The attorney for the Defendant then made the following motion: 'At this time, on behalf of the Defendant, we would like to enter a motion for mistrial, based upon the following grounds: Mr. S.W. Compton has taken part in conferences and for all appearances he has been counsel for the State; he's been conferred with by counsel for the State throughout the course of the trial. The jury was not qualified as to Mr. Compton in this trial. We feel that because of his long residence in the county and his personal interests in the county, the defendant has been greatly injured and the jury should have been qualified as to Mr. Compton. I would like for the record to show, your Honor, that Mr. Compton was the gentleman that had the diagram in this case, and further that Mr. Compton has examined a number of witnesses in this case and was active in apprehending one of the witnesses in this case, Anderson Pickett.'

'Thereupon the Solicitor called the attention of the Court to the fact that 'the diagram was not made by Mr. Compton and was submitted to counsel for the Defendant by the Solicitor, and Mr. Compton is not a special prosecutor in this case.'

'The Court overruled the motion, and the Defendant excepted to the ruling of the Court.'

The above quotation constitutes all the information this court is affored with reference to the complaint here made. We do not find where Mr. Compton's name appears as the examiner of any of the witnesses during the progress of the trial.

It appears to us that if the matter was of so much potential harm, as here contended, it should not have been permitted to exist throughout the major portion of the trial without being called to the attention of the trial judge, thereby giving him an opportunity to remedy it. The statement above, 'The jury was not qualified as to Mr. Compton in this trial', is very vague and uncertain in meaning. This being a criminal case, if on voir dire a juror had been found to be related to Mr. Compton, this would not have constituted a ground for challenge for cause. Frost v. State, 225 Ala. 232, 142 So. 427; Howard v. State, 9 Ala.App. 74, 63 So. 753; Turner v. State, 15 Ala.App. 19, 72 So. 574.

We are clear to the opinion that there is not sufficient injury here shown upon which we can predicate error.

It is contended that error to reverse arose out of the following incident:

'Mr. Beddow: I want to draw a map, a diagram of that place for my own benefit and to aid the Court and jury.

'Court: The Court will permit you to show all that is material and relevant in this case, but the Court does not want to take up the time of the Court and jury unnecessarily.

'Mr. Beddow: I would like to reserve an exception to the Court's statement that the Court made ex mero motu that it hasn't got time to take to permit me to draw a diagram and take the Court's time up to draw a diagram.

'Solicitor: The Court did not make that statement.

'Mr. Beddow: Whatever it was, we want to except to the ex mero motu statement of the Court.'

Because of the emphasis placed in brief on this occurrence, we are led to believe that...