Higdon v. State, 7 Div. 896.

• Decision Date: 30 June 1932
• Docket Number: 7 Div. 896.
• Citation: 25 Ala.App. 209,143 So. 213
• Parties: HIGDON v. STATE.
• Court: Alabama Court of Appeals

143 So. 213

25 Ala.App. 209

HIGDON v. STATE.

7 Div. 896.

Court of Appeals of Alabama

June 30, 1932

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

Roscoe Higdon was convicted of murder in the second degree, and he appeals.

Reversed and remanded.

McCord & McCord, of Gadsden, for appellant.

Thos E. Knight, Jr., Atty. Gen., for the State.

SAMFORD J.

The defendant killed Jess Wimberly by shooting him with a pistol. The difficulty occurred at or near the back door of the Wimberly dwelling at about 7:30 o'clock at night. Some thirty or forty minutes before the shooting there had been a row between defendant's wife and mother on the one side and Wimberly's wife on the other, in the back yard of the Wimberly dwelling, and when Mrs. Higdon got home she told defendant about it. Armed with a pistol, defendant went immediately to the home of Wimberly, knocked on the back door, and, when it was opened either by Wimberly or his wife asked for Wimberly. When the door was opened, the difficulty began. Deceased was shot, and from the effect died. Defendant was cut with a knife in several places seriously. The points at issue relate to what took place at the Wimberly door at the time of the beginning of the difficulty. The state contends and offers evidence tending to prove that Wimberly the deceased, was sitting by his fire; that defendant knocked on the door, and, when the door was opened, asked for Winnerly or Wimberly, and, when told that Jess Wimberly lived there and Wimberly went to the door, defendant shot him and afterwards Wimberly cut defendant.

The defendant, on the other hand, contended and offered evidence tending to prove that he went to the Wimberly home on a peaceful mission to inquire into the differences between his wife and Mrs. Wimberly, that, when the door was opened, he was attacked by Wimberly, Mrs. Wimberly, and Wimberly's brother-in-law; that he was beaten, knocked down, cut, and, while down, he fired one time, striking Wimberly.

There are many objections to testimony and exceptions reserved to the rulings of the court. To deal with all of these specifically would extend this opinion to undue length. So we are dealing with the questions generally except in such instances where it is necessary to be specific.

The first exception relates to a remark of the solicitor in his opening statement to the jury in which he said: "If it should become relevant, we expect to show that these women came up there drunk." The practice of making opening statements to the jury as to what counsel expect to prove on the trial is unnecessary and useless, but, when allowed by the court, counsel should confine himself to statements based upon facts admissible in evidence, and the court will not allow counsel to take such opportunity to make statements not based on legal testimony and prejudicial to defendant. In this instance, however, the exception is so briefly stated as not to inform the court of enough facts upon which to base a ruling.

The coroner, who was also a mortician, was allowed to testify that he examined the body of deceased after death, that he probed the wound with one of his instruments, and to the range of the bullet as shown by such probe. This is not such testimony as to require its exclusion because the witness was not an expert. The witness gave no opinion, but stated facts as he found them. No scientific deductions were necessary.

It was relevant for the state to prove that there had been a difficulty at the Wimberly home, about thirty minutes before the fatal shooting, between defendant's wife and mother-in-law on the one side and Mrs. Wimberly, wife of deceased, on the other, but the details of that difficulty and what was there said by the parties not relating to the fatal difficulty were inadmissible.

There was some evidence tending to show that, while Mrs. Higdon and her mother were at the house of deceased, deceased went to a store near by and called the police over the phone. The details of this transaction, relating as it did to the row between the women, were all irrelevant and immaterial, and should not have been admitted. It was shown without dispute that the police came and went before Higdon ever came to the Wimberly home, and the calling of the police and their coming and going had no connection with the fight between defendant and deceased.

The solicitor, over objection and exception by defendant, was allowed to prove by his own witness, Mrs. Wimberly, certain statements she had made and testified to under oath in a proceeding before the coroner. This evidence was not admissible for any purpose. If it was for the purpose of impeachment, it would not be legal, because a party may not impeach his own witness. If it was used to corroborate the testimony of the witness, it may not be done in that way. Pope v. State, 168 Ala. 33, 53 So. 292; Stanfield v. State, 3 Ala. App. 57, 57 So. 402; 28 Alabama & Southern Digest, Witnesses, k414(2).

The state, over objection and exception of defendant, was allowed to prove in detail a visit of deceased to the store of Charlie Watson, at which time he called the police, had a conversation with Watson, etc. It was relevant to prove that deceased was at the store as tending to fix the time of the difficulty, but as to what he did and who he called over the phone was not in any way connected with this defendant. He did not even know the defendant at that time or know that he would see him that night. What deceased did at Watson's store related only to the women and what had already transpired at his house.

Upon the examination of Mrs. Heyward, a witness for the defendant defendant's counsel...