Hembree v. State

• Decision Date: 22 July 1924
• Docket Number: 6 Div. 469.
• Citation: 20 Ala.App. 181,101 So. 221
• Parties: HEMBREE v. STATE.
• Court: Alabama Court of Appeals

101 So. 221

20 Ala.App. 181

HEMBREE v. STATE.

6 Div. 469.

Court of Appeals of Alabama

July 22, 1924

Appeal from Circuit Court, Blount County; O. A. Steele, Judge.

Grady Hembree was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Russell & Johnson, of Oneonta, for appellant.

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

FOSTER J.

The indictment in this case charged murder in the first degree. The defendant was convicted of murder in the second degree. Pleas of not guilty, and not guilty by reason of insanity were interposed.

The evidence for the state tended to show that defendant shot and killed deceased on a Friday evening about sundown, while the latter was tying up fodder in the cornfield; there being no eyewitness to the killing other than defendant. There was evidence both on behalf of the state and the defendant of a previous difficulty between deceased and defendant, as well as between deceased and the defendant's wife. The defendant claimed that the killing was in self-defense, and that he was insane at the time of the fatal difficulty.

The court properly allowed the witness Jip Hedgecock to testify that one could sit in Hembree's house and see over to Hedgecock's house. This was clearly the statement of a fact rather than the mere opinion of the witness, and was admissible in evidence. Moulton v. State (Ala. App.) 98 So. 709.

Upon cross-examination of the state witness Jip Hedgecock deceased's brother, he testified that "among us we have employed Mr. Nash to assist in the prosecution." Witness was then asked by defendant's attorney, "How much had you promised to pay him?" The state's objection to this question was sustained by the court. Defendant's attorney further asked, "Have not you promised to pay him as much as $500?" The state objected to this question, and the objection sustained. To the court's rulings, sustaining objections to both of these questions, proper exceptions were taken. Defendant's attorney offered to show that witness had paid, or promised to pay, as much as $500 to Mr. Nash to assist in the prosecution of the defendant, and upon objections by state this was not allowed.

It is competent for defendant to show bias or interest of any particular witness against him and the extent of such bias or interest. The amount paid or promised by witness to an attorney, specially employed for the prosecution of defendant, would have direct relation to the question of his bias or interest. We think that the court erred in refusing to allow this in evidence. Davidson v. State (Ala. App.) 95 So. 54; Dickey v. State, 197 Ala. 610, 73 So. 72.

It is material after introduction of evidence tending to establish a plea of self defense that the deceased at the time of the difficulty was intoxicated. The odor of whisky "about the body" or "on the body" immediately after the difficulty was a circumstance to be considered by the jury in connection with other evidence in the case in determining whether or not the deceased was drinking or intoxicated at the time of the fatal difficulty. Tittle v. State, 15 Ala. App. 306, 73 So. 142.

Christ Miller, a witness for the state, testified that-

"He had known defendant about two years, had seen him at different places, at his father's, and he worked in the shop, and had been with him on the farm, and had seen him logging different times, had seen him frequently during the two years."

This witness was sufficiently acquainted with the defendant to testify as to his mental condition in rebuttal of nonexpert evidence on behalf of the defendant that he was insane. Stuckey v. Bellah, 41 Ala. 700.

The particulars of two former difficulties between the deceased and the defendant were admitted in evidence, but no objection was made by the defendant. Objection to the admission of evidence may not be raised for the first time on appeal.

Ed Glass, a witness for defendant, upon cross-examination by the state, testified that he did not think that he had told one Billie Russell the next week after the killing that he knew enough to break Hembree's neck. Afterwards Billie Russell was called as a witness for the state and testified, over objections of defendant, that the witness Ed Glass had told him that he knew enough to break Hembree's neck. Clearly this evidence was introduced for no other purpose than to impeach the witness Ed Glass. A witness may not be impeached by alleged contradictory statements which are not material. Opinions of witnesses are not material facts. The alleged statement of the witness Ed Glass to Billie Russell that he (Glass) knew enough to break his (Hembree's) neck was nothing more than an opinion and was not material evidence. Metcalf v. State, 17 Ala. App. 14, 81 So. 350; Robinson v. State, 14 Ala. App. 25, 70 So. 960; Western Ry. of Ala. v. Turrentine, 197 Ala. 603, 73 So. 40.

The defendant's wife, during direct examination, in referring to defendant's mental condition stated:

"In the field he would pick cotton a while and sit down like he forgot all about what he was doing."

This was properly excluded on motion of solicitor, as it was clearly a statement as to the mental cognition of another and inadmissible. Bailey v. State, 107 Ala. 151, 18 So. 234; Spurlock v. State, 17 Ala. App. 109, 82 So. 557.

Also the statements of the same witness that she "didn't see any cause for his crying" and that he was "just wild" were properly excluded on motion of the state; such statements being the disclosure of one's own uncommunicated mental status and the opinion of the witness respectively. The inference of a witness as to the mental state of another is rejected where it is conceived rather than perceived, and we are not able to say that the statement that defendant was "just wild" was based upon witness' perception rather than conception. Moore v. State, 16 Ala. App. 503, 79 So. 201; Hill v. State, 18 Ala. App. 172, 90 So. 62; Bell v. State, 140 Ala. 57, 37 So. 281.

Mrs. Matilda Latham, a witness for the state, testified over objection of the defendant, that on the afternoon before the killing took place and as the deceased was leaving his house, she told him to take the gun and kill her a squirrel. Circuit court rule 33, Code 1907, p. 1527, provides:

"When in the progress of the trial of any cause in a court

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