Holloway v. State

• Decision Date: 07 February 1956
• Docket Number: 7 Div. 348
• Citation: 89 So.2d 313,38 Ala.App. 434
• Parties: Rosa Lee HOLLOWAY, allas Kirby v. STATE.
• Court: Alabama Court of Appeals

Page 313

89 So.2d 313

38 Ala.App. 434

Rosa Lee HOLLOWAY, allas Kirby v. STATE.

7 Div. 348.

Court of Appeals of Alabama.

Feb. 7, 1956.

Rehearing Denied March 6, 1956.

Ben F. Ray, Birmingham, and Guy Sparks, Anniston, for appellant.

John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the state.

PRICE, Judge.

The appellant was convicted of the offense of manslaughter in the first degree, under an indictment charging her with murder in the first degree. Her punishment was fixed at five years' imprisonment in the penitentiary.

The evidence is without dispute that deceased, Eugene Kirby, died as the result of a stab wound in the chest, inflicted by defendant.

According to the testimony for the State, appellant was found by the officers sitting on the ground alongside the road with deceased's head in her lap and blood spurting from the wound. The appellant was taken to the City Hall where she made a statement which was reduced to writing and signed by defendant. In the statement, which was introduced in evidence defendant admitted that she stuck deceased one time with a knife after deceased had cursed and threatened her, and had drawn back to hit her. The morning after the killing appellant was taken to the scene where she found a knife which she identified as the one which she used to stab the deceased.

As a witness in her own behalf defendant testified that deceased, with whom she had been living for four or five years came home from work drinking and insisted that she go out on a tour with him. When she started out she was eating an apple, using a small paring knife to peel it, and she took the apple and the knife with her. They first bought sandwiches at a barbecue stand, went to a 'Juke Joint' where they danced; stopped at a house and bought liquor and stayed 25 or 30 minutes while deceased drank most of the liquor. They started walking home, deceased cursing her and arguing all the way. Deceased said he was going to kill her and he hit her on the shoulder with a rock. She stated the blow knocked her down and as she was getting up the deceased came at her fast and she stabbed him once with the knife. She testified that during the time she lived with him deceased, on various occasions while he was drinking, scalded her with hot coffee; tore off her clothes and put her out in the street naked; ran her away from home with a pistol; beat her in the face until she was bloody, and a week and a half before the killing he cut her on the back of the head with a knife.

Some of these acts of violence by deceased against defendant were also testified to by defendant's employer and by some of her neighbors.

The court sustained objections to these questions propounded to defendant on direct examination:

'Q. Now, in your conversations with him from time to time up until the time of his death, I'll ask you whether or not he ever made a statement to you to the effect that he had killed a man and served a term in the penitentiary?'

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'Q. Do you know of your own knowledge whether he had ever killed a man and served a term in prison for it?'

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'Q. Of course, you had all these other experiences you have talked about, and in addition to that experience, I will ask you if he on more than one occasion--a number of occasions--while you all were living together over a period of about four years, if he hadn't told you that he had spent ten years in the penitentiary for killing a man with a pistol?'

Appellant's counsel concedes that this evidence is inadmissible for the purpose of showing deceased's character for violence, turbulence, bloodthirstiness, etc., since under the well established rule evidence as to the character of the deceased must be limited to general reputation and cannot be extended to allow proof of specific acts or declarations of the deceased. Dupree v. State, 33 Ala. 380; Bullington v. State, 13 Ala.App. 61, 69 So. 319; Jackson v. State, 147 Ala. 699, 41 So. 178; Smith v. State, 197 Ala. 193, 72 So. 316; Lambert v. State, 208 Ala. 42, 93 So. 708.

But it is contended in brief that such evidence was admissible on the theory that, 'prior acts of extreme and unlawful violence are admissible when offered for the purpose of proving apprehension of bodily harm from the deceased by a defendant charged with the murder of the deceased if the defendant had knowledge of such acts prior to the homicide and has made a prima facie case of self defense, although not so admissible when offered for the purpose of proving the deceased's character.' Citing numerous cases from other jurisdictions in support of such contention.

In 26 American Jurisprudence, Section 347, p. 394, the rule is stated: '* * * according to the weight and the trend of modern authority, if, prior to the homicide, the defendant, either through his own observation or through information communicated to him by others, including the deceased himself, knew of other acts of violence of the deceased, he may, in support of his contention that he had reasonable grounds to believe himself in imminent danger from an assault by the deceased, introduce evidence of such prior unlawful acts of violence by the deceased. Such evidence bears on the question whether the defendant reasonably apprehended danger to his life or of great bodily injury.'

Many cases from other jurisdictions are discussed in the annotation, 121 A.L.R. 380, on the subject of the admissibility, on prosecution for homicide or assault, of evidence of specific acts of violence by deceased, or the person assaulted, against others than the defendant, on the issue of self defense. These cases hold that, under proper circumstances, evidence of prior specific acts of violence by deceased, of which the defendant has previous knowledge, is sometimes admitted to show, or tend to show, who was the aggressor and what were the reasonable apprehensions of the defendant for his life and safety.

But the courts of our State have not yet gone as far in applying this rule, in instances such as we have here, as counsel would have us go.

In Craven v. State, 22 Ala.App. 39, 111 So. 767, 771, the court quoted with approval this general rule:

"Where there is a claim supported by some evidence of self-defense, or, as it has been well stated, where the proof justifies the giving of a charge on the law of self-defense, defendant may for the purpose of showing his antagonist to have been the aggressor, introduce evidence tending to show that he entertained hostile feelings toward him. Thus he may show that there had been previous difficulties or quarrels between himself and the person assaulted, explaining his own reason for being at the place where the difficulty occurred. So, too, defendant may show that previous to the difficulty his antagonist had been guilty of acts of conduct evincing hostility toward him, or of conduct which would tend to explain his motive in acting as aggressor. Previous specific acts of violence by him toward accused and others in his presence, and information to accused of other such acts may be shown. Defendant may show that on former occasions he assaulted or attacked, beat, waylaid, or shot at him.' Thornton v. State, 18 Ala.App. 225, 90 So. 66; Gunter v. State, 111 Ala. 23, 20 So. 632, 56 Am.St.Rep. 17.' However, in the Craven case the acts of violence sought to be shown were directed against the defendant, and no attempt was made to introduce specific acts against persons other than defendant.

In Hoomes v. State, 34 Ala.App. 121, 37 So.2d 686, 688, certiorari denied ...