Hill v. State

• Decision Date: 31 May 1906
• Citation: 146 Ala. 51,41 So. 621
• Parties: HILL v. STATE.
• Court: Alabama Supreme Court

41 So. 621

146 Ala. 51

HILL v. STATE.

Supreme Court of Alabama

May 31, 1906

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

"To be officially reported."

Cleveland Hill was convicted of manslaughter, and he appeals. Affirmed.

The following written charges were requested by the defendant and refused: "(B) The court charges the jury that in weighing the testimony of any witness you will look to all the facts and circumstances in evidence, including any evidence, if any, tending to show that such witness has sworn falsely intentionally about any fact in the case. (C) The court charges the jury that a reasonable doubt is such a doubt as would cause a careful, prudent man to hesitate before he acts; and if there is any such doubt in your minds or in the minds of any one juror, you must acquit the defendant or have a mistrial. (D) It was unlawful conduct on the part of John Henson to have a pistol concealed about his person and to talk of killing somebody before the sun went down, if he did so have said pistol and have said talk. * * * (F) The fact, if it be a fact, that the deceased had a pistol concealed about his person, is a circumstance to which the jury may look, in connection with all the other facts and circumstances in evidence, in determining the issue in this case. (G) The fact that the defendant had cartridges in his pocket, if he had cartridges in his pocket, together with such language as may have been shown by the evidence, in connection with all the facts and circumstances in evidence in determining whether the defendant is guilty or not. * * * (I) The jury have the right to look at the evidence tending to show that the deceased was carrying a pistol about his person and making threats of doing someone harm before the sun went down, in connection with all the other circumstances in evidence, in determining whether or not the deceased made demonstration indicating a purpose of taking the life of the defendant, or of doing him some grievous bodily harm."

John A Lusk, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON J.

The indictment charges manslaughter in the first degree. From a judgment of conviction the defendant appealed.

The killing occurred on a Sunday afternoon in June, 1904. The defendant, the deceased, and others, all barely grown and hardly in the 20's had been attending singing exercises at Mobbs' Schoolhouse. After the exercises were over they congregated in the road near the schoolhouse and engaged in "friendly scuffles and play," out of which grew the unfortunate difficulty in which the deceased lost his life at the hands of the defendant. The deceased was a cripple. In his infancy his feet were so badly burned that his toes and the front part of his feet were of necessity amputated, leaving him only stubs to walk on. He wore boots that indicated the shape of his stubs--the condition of his extremities; and the evidence tended to show that he could not, without holding to something, be still while standing erect, but that he could walk and remain erect so long as he was moving. Some of the evidence tended to show that defendant stabbed the deceased once while deceased was retreating from the defendant, and that defendant overtook him, while the defendant's evidence tended to show that he was retreating and the deceased was pursuing him. There was evidence which tended to show self-defense, and the defense relied on was essentially that of self-defense. The appellant's counsel has made an assignment of errors on the record, and we shall consider the cause for the most part with respect of the errors assigned.

Evidence showing the condition of the deceased's feet, and the admission of the boots as evidence, was allowed over the objection of the defendant, and his motion to exclude the evidence was overruled. These rulings of the court against the defendant were excepted to and are presented for review by the grounds in the assignment of errors numbering 1 to 13, inclusive, and 28, 29, and 38. "The test of the relevancy of evidence," it is said by Wharton, is "whether it conduces to the proof of a pertinent hypothesis; a pertinent hypothesis being one which, if sustained, would logically influence the issue." 1 Wharton on Ev. § 20. And Elliott, in his work on Evidence, says: "As a general proposition it may be said that any evidence that tends in any reasonable degree to establish the probability or improbability of a fact in issue, no matter how slight its weight may be, is relevant." Elliott on Ev. §§ 144, 145, 147; Whitaker's Case, 106 Ala. 30, 17 So. 456; Governor v. Campbell, 17 Ala. 566, 574. In this case the important and turning issue on the trial was whether the defendant, in taking the life of the deceased, did so in self-defense, as it is defined by the law.

An important inquiry in respect of this issue was as to the necessity for taking the life of the deceased. It must have been an imperious necessity, and if the defendant could have avoided the taking of life by retreating, it cannot be said in law that such necessity existed, nor could it be said to exist if the defendant could have overcome the deceased otherwise than by taking his life The tendency of the estate's evidence was that the deceased was without firearms, and none of the evidence tended to show that he ever exhibited firearms or weapons of any kind during the difficulty. Suppose the deceased had been without legs; could it be doubted for a moment that evidence of the fact would have been relevant for the purpose of showing that the defendant could have easily escaped injury at his hands by keeping out of his way? Or, suppose the deceased had been a man of perfect and powerful physique, it could not be doubted, under the tendencies of the evidence for the defendant in this case, that this fact would have been competent as tending to support the theory of self-defense--that a necessity existed for defendant to resort to a deadly weapon on account of the deceased's superior manhood. Kerr on Homicide,§ 437. In Gunter's Case, the defendant was prosecuted for an assault with intent to murder, and the injured party, who was examined as a witness, was allowed to testify that he was about 18 years old at the time he was shot by the defendant. The court said: "This was a pertinent inquiry, as tending to show the relative conditions of the parties at the time of the assault." Gunter's case, 111 Ala. 23, 20 So. 632, 56 Am. St. Rep. 17. It seems to us that the condition of both parties, deceased and the defendant, was of the res gestæ of the killing; and, if age of a party is competent evidence, for a much stronger reason, it seems to us, should be evidence that one of the parties had no feet. This, in line with the state's evidence and theory, would tend to rebut any inference of great danger of death or of bodily harm to the defendant from the deceased. We are sure it is within the range of common knowledge that a man without feet has not the same power or rapidity of locomotion as one not so afflicted.

There is nothing in the case of Griffith v. State, 90 Ala. 583, 8 So. 812, to support the defendant's contention. There the defendant was tried for the murder of an infant, and it was sought to prove declarations of a midwife as to the condition of the infant. The court said the midwife should have been called to prove the fact, if relevant; that her statements were not part of the res gestæ. Nor is the citation by the appellant from Mr. Elliott's work on Evidence (section 1228) in point. The case cited by Mr. Elliott was one in which a husband had sued a railroad company for damages for the death of his wife, and it was held error to allow the introduction in evidence of a photograph of the wife, who appeared to be a handsome woman. Smith v. Leigh Valley R. Co., 177 N.Y. 379, 69 N.E. 279. The appearance of the wife was not an issue in the case and could have shed no light on the negligence vel non of the defendant. We are of opinion that the court's ruling on the evidence with respect to the deceased's physical condition are free from error. Nor do we think there was error in allowing the boots of the deceased to be introduced in evidence. They were shown to be in the shape of the deceased's "stubs" on which he walked, and were worn by him at the time he was killed. This was object evidence, and perhaps conveyed to the jury a clearer idea of the deceased's condition than mere verbal description by witnesses could.

But appellant insists that proof of the fact that deceased was a baby when the misfortune that deprived him of his feet occurred, and how it occurred, was wholly irrelevant, and calculated to mislead and unduly prejudice the jury against him. The argument is that it was sentimental. Without determining the relevancy or admissibility of the evidence we think the court's action may be...