Hoomes v. State
| Decision Date | 03 August 1948 |
| Docket Number | 3 Div. 889. |
| Citation | 34 Ala.App. 121,37 So.2d 686 |
| Parties | HOOMES v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Oct. 5, 1948.
C. L. Hybart, of Monroeville, for appellant.
A A. Carmichael, Atty. Gen., and L. E. Barton, Asst. Atty Gen., for the State.
On an indictment charging murder in the first degree, the accused was convicted of murder in the second degree. His punishment was fixed at twenty years in the State penitentiary.
Admittedly the defendant killed his son-in-law, Joe Greer. The appellant claimed self defense.
As we will hereinafter demonstrate, the conclusion has been reached that the judgment of the lower court must be reversed. Except as it may appear necessary to illustrate the point under review, we will avoid a discussion of the tendencies of the evidence. We will omit to treat those matters which will not likely reoccur in the event of another trial.
The defendant moved for a change of venue. This was granted, and the cause was transferred from Escambia County to Conecuh County. Counsel for movant noted an exception to the action of the court in removing the cause to the last named jurisdiction. The only insistence made in brief of counsel is that the county to which the case was removed was not free from exception. Title 15, Sec. 269, Code 1940.
The record contains no proof in support of this contention. We have, therefore, no data or information upon which to review the matter.
It appears that the trial judge was convinced that a State's witness was in another state and out of the jurisdiction of the court. Over appellant's objections the State was allowed to introduce the testimony of this witness, which was given at a former trial of the case. There are no grounds stated in support of this objection.
The review, therefore, comes under the influence of the rule which provides: 'A general objection of this character cannot be sustained, unless the evidence is manifestly illegal and irrelevant, and apparently incapable of being rendered admissible in connection with other evidence.' Sanders v. Knox, 57 Ala. 80. See also, Louisville & N. R. Co. v. Scott, 232 Ala. 284, 167 So. 572; Bennett v. Bennett, 224 Ala. 335, 140 So 378; Williams v. Bolding, 220 Ala. 328, 124 So. 892.
The appellant introduced as a witness a Mr. Alford who was present and witnessed a prior difficulty between the accused and the decedent. In this connection the witness was asked: 'Did he (the deceased man, we interpolate) get out his knife at that time and start on Mr. Hoomes?' The court sustained the solicitor's objection to this query.
It is axiomatic that, under the issues here posed, proof that the parties had engaged in a former difficulty was material and admissible.
The details thereof could not be disclosed.
The courts are committed to the rule that it is permissible to introduce facts pertaining to the prior encounter, which go to portray the gravity thereof; that is, whether or not it was grave or trivial in character and extent.
In Buffalow v. State, 219 Ala. 407, 122 So. 633, 634, Justice Brown, writing for the Supreme Court, responded to this question at considerable length and with studious care. The Justice therein observed:
In Watts v. State, 177 Ala. 24, 59 So. 270, the court held that by showing that, prior to the fatal difficulty, the deceased attacked the defendant with a pair of scissors was not going into the details of the altercation against the rule appertaining.
Proof that on the day before the killing the decedent, in a difficulty with the defendant, drew a gun on him was held admissible in Nelson v. State, 13 Ala.App. 28, 68 So. 573.
To like effect is the holding in Stinson v. Richardson, 239 Ala. 161, 194 So. 508. See also, Woods v. State, 20 Ala.App. 200, 101 So. 314; Wright v. State, 19 Ala.App. 562, 99 So. 52; Thornton v. State, 18 Ala.App. 225, 90 So. 66; McGuff v. State, 248 Ala. 259, 27 So.2d 241; Sanders v. State, 242 Ala. 532, 7 So.2d 483.
Other authorities could be cited, but unquestionably we have sufficiently illustrated our view that it was error to disallow the evidence of instant concern.
There was a very sharp and irreconcilable conflict in the evidence relating to which of the participants was the aggressor in the fatal encounter.
The decedent was divorced from his wife, daughter of the defendant. Ill feeling and confusion had followed the separation. This related in the main to the care and custody of the three minor children. The appellant shared the side of his daughter in this inharmonious affair and experienced several unpleasant contacts with the decedent. In fact, on the day of the homicide, but prior thereto, the defendant had secured a warrant charging that the deceased had used abusive and insulting language in the presence of the latter's former wife.
On the day of the fatal difficulty the accused, his wife, two daughters, the former wife of the decedent, and the three little children of the separated couple came to Brewton and parked their automobile on a street of the city. Just before the shooting the party gathered at their car preparatory to leaving for their rural home. The appellant went across the street from the parked car to a shoe repair shop. Before he returned the decedent came to the automobile and, according to the testimony of some of the occupants, had an open knife in his hand, and was engaging in 'loud talking.' The little children were crying. During this occurrence, Betty Faye Hoomes, a daughter of the appellant, left the party and hurried across the street to the shoe repair shop and there told her father something. The latter immediately returned to his parked automobile, and there forthwith the encounter ensued which resulted in the fatal shooting of the deceased.
The court disallowed the appellant to tell the jury what his daughter said to him when she came to the shoe shop. In order to apprise the court of the content of the tendered evidence counsel reframed the question in this form: 'Did she tell you that Mr. Dick Greer was over there raising a ruckus with your wife?'
In presenting its evidence in chief the State introduced as a witness Mr. Lester, the operator of the shoe repair shop. He related the circumstances of the appellant's coming into his place of business and in this connection testified:
The witness testified also that he heard reports of two shots from a pistol soon after the appellant left his shop.
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Hill v. State
...foreign matters or issues of questionable or doubtful relevancy. Jones v. State, 17 Ala.App. 394, 85 So. 830 (1920); Hoomes v. State, 34 Ala.App. 121, 37 So.2d 686 (1948). The Court below found that neither attorney had purposefully brought in evidence of the pending civil suit. To remove a......
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Glenn v. State, 6 Div. 282
...discretion of the trial judge. Hill v. State, Ala.Cr.App., 366 So.2d 296 (1978), affirmed, Ala., 366 So.2d 318 (1979). In Hoomes v. State, 34 Ala.App. 121, 37 So.2d 686, cert. denied, 251 Ala. 392, 37 So.2d 690 (1948), the concept of relevancy was "The general rule is declared in Gafford v.......
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Duncan v. State
...foreign matters or issues of questionable or doubtful relevancy. Jones v. State, 17 Ala.App. 394, 85 So. 930 (1920); Hoomes v. State, 34 Ala.App. 121, 37 So.2d 686 (1948)." And in an earlier statement by the Alabama Supreme Court in Jordan v. State, 81 Ala. 20, 30, 1 So. 577 (1887), we "In ......