Ingram v. State
| Citation | 13 Ala.App. 147,69 So. 976 |
| Decision Date | 30 June 1915 |
| Docket Number | 380 |
| Parties | INGRAM v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Oct. 4, 1915
Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.
Malcolm Ingram was convicted of manslaughter in the first degree, and he appeals. Affirmed.
The charge was the killing of Zollie Bryson by killing him with a gun. The state asked the witness Powell if Ingram made any threats at that time, and the witness answered, "Why Bryson was cussing at him." This answer, on motion of the state, was excluded. On the cross-examination of the witnesses Smith and Johnson, the defense, on cross-examination, asked them: "Were you there when this negro had some trouble with old man Horn?" The objection of the state was sustained. Also, "What did you see on Mr. Searcy's arm?" and "That was right at the time when Zollie got a brickbat and was about to knock old man Horn off his wagon, wasn't he?" The other matters sufficiently appear from the opinion.
Espy & Farmer, E.H. Hill, and Lee & Tompkins, all of Dothan, for appellant.
W.L Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.
Even should it be conceded that the matter inquired about was not part of the res gestae, and that the court erroneously permitted the solicitor to ask the state's witness J.J Powell the question: --the answer elicited was not injurious or prejudicial to the defendant, for the witness answered, "Not as I noticed." This evidence not being unfavorable to defendant, its admission, if error, was without injury. Austin v. State, 145 Ala. 37, 40 So. 989; Braham v. State, 143 Ala. 28, 38 So. 919.
It was entirely competent for the state to show by the witness Powell that the defendant made threats against the deceased at Trautwine's store but a short time before the killing, for the purpose of showing malice and a disposition to harm deceased. Parham v. State, 147 Ala. 57, 42 So. 1. Nor was the question, asking if the defendant had made threats, objectionable as calling for the opinion of the witness, nor was the evidence elicited by the question objectionable as being the opinion or conclusion of the witness. The statement of the witness that the parties were "fussing" was but the statement of a collective fact, based on his personal knowledge from seeing and hearing the parties and observing their conduct. See Hill v. State, 146 Ala. 51, 41 So. 621; Tagert v. State, 143 Ala. 88, 39 So. 293, 111 Am.St.Rep. 17; Sims v. State, 146 Ala. 109, 41 So. 413.
The state had a right to have the court exclude the statement volunteered by the witness Powell that was not responsive to the question calling for threats made by defendant against deceased.
A defendant should not be permitted, under the guise of a cross-examination for the purpose of testing the accuracy of the memory of a witness, to prove the particulars of a former difficulty between the deceased and a third party forming no part of, and having no connection with, the killing of the deceased by the defendant and for which he was on trial; and the court properly exercised its discretion in refusing to allow the defendant to bring out foreign matters immaterial to the issues on the cross-examination of the witnesses R.A. Smith and Jack Johnson, as to a dispute or difficulty between the deceased and one Horn, with which defendant was not concerned or connected. It is discretionary with the trial court as to what extent cross-examination of a witness will be permitted on irrelevant matters for the purpose of testing the accuracy of the witness' knowledge. Dilburn v. L. & N.R.R. Co., 156 Ala. 228, 47 So. 210.
There was no error in allowing the witness Jack Johnson to testify to what he observed as to the condition of the shirt and arm wound of Searcy shortly after the killing, at which time he saw them. Fowler v. State, 155 Ala. 21, 45 So. 913.
When the state's witness Cliff McGowan was interrogated about what he heard take place between the deceased and the defendant at Fowlke's store some 10 minutes before the killing, no evidence had been introduced showing that the defendant acted in self-defense in shooting the deceased, and the court cannot be put in error for refusing to allow the defendant, at that stage of the proceedings, to show that the deceased cursed and abused the defendant at that time and place prior to, and disconnected with, the occurrence of the killing. If this evidence would have had a tendency later (as contended by defendant) to substantiate the testimony of the defendant when he was subsequently examined as a witness as to what took place at Fowlke's store, the defendant should have offered to make the proof after the defendant had testified, or after there was evidence introduced tending to show that the defendant acted in self-defense. Gilmore v. State, 141 Ala. 51, 37 So. 359.
One or more of the questions that elicited the testimony of the defendant's witness Angus Kirkland, to the effect that the deceased a short time before the main transaction resulting in the killing, jumped on a wagon standing near the wagon of one Horn, and then got into Horn's wagon and drew back a brick in an attempt to strike Horn, when a third party interceded and took the deceased away, while shown to have been objected to by the state and the objection to the question sustained by the court, did not result in an exclusion of the evidence, and the defendant was not injured thereby, even if it be conceded that the ruling was erroneous; for the defendant seems to have subsequently received the full benefit of this testimony by the witness ( Kirby v. State, 151 Ala. 66, 44 So. 38; Borden & Co. v. Vinegar Bend Lumber Co., 7 Ala.App. 335, 62 So. 245), and, if not, several other witnesses testified to the same facts, and they were not controverted, but, on the contrary, were before the jury without conflict in the evidence. Phillips v. State, 11 Ala.App. 15, 22, 65 So. 444. These facts were practically without contradiction, and it was harmless, if error, to refuse to admit cumulative evidence of such facts. Hauser v. State, 6 Ala.App. 31, 60 So. 549.
The defendant's counsel insists in brief that the court was in error in not permitting the defendant's witness Isham Searcy, and the defendant, when being examined as a witness in his own behalf, to narrate a conversation that took place between the two a short time before they (under one phase of the evidence) went to the place where the deceased was and joined him and walked along the street or road with him but a short distance, engaged in conversation with him, when the killing took place. The theory upon which the defendant bases his contention of this evidence of a conversation between the defendant and his companion being admissible rests upon the holding of those cases laying down the rule that in homicide cases declarations of the accused or the deceased, made just before...
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Spelce v. State
... ... the object and purpose in going to the place, are admissible ... in evidence as of the res gestae of the act of going, has ... long been established by the decisions of our Supreme ... Court. Maddox v. State, 159 Ala. 58, 48 So. 689; ... Harris v. State, 96 Ala. 24, 11 So. 255; Ingram ... v. State, 13 Ala.App. 147, 69 So. 976; Crenshaw v ... State, 205 Ala. 256, 87 So. 328. But we know of no rule ... which allows proof to be made of the absence of declarations ... In the instant case it was not proposed to show that any ... declarations about going to the place of the ... ...
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Gary v. State
...made by defendant before the killing, and for that reason was admissible. Moton v. State, 13 Ala. App. 43, 69 So. 235; Ingram v. State, 13 Ala. App. 147, 69 So. 976; Id., 195 Ala. 695, 70 So. Testimony that deceased had had trouble with other parties at another time and place could not be s......
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Stover v. State
... ... disallowed ... "It ... was not error to exclude evidence as to conversations between ... defendant and a third person while going to the scene of the ... crime, wherein the third person suggested *** going to see ... deceased about picking cotton for defendant." Ingram ... v. State, 13 Ala. App. 147, 69 So. 976, 977, certiorari ... denied Ex parte Ingram, 195 Ala. 695, 70 So. 1015; ... McQuire v. State, 3 Ala. App. 40, 58 So. 60, ... certiorari denied Ex parte McQuire, 177 Ala. 671, 58 So ... However, ... the case would not be reversed on this ... ...
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Beard v. State
...the killing, as to the purpose or object in going there, are admissible as part of the res gestae . . . of the killing.' Ingram v. State, 13 Ala.App. 147, 69 So. 976, cert. den. sub nom. Ex parte Ingram, 195 Ala. 695, 70 So. 1013. Therefore, it is proper to admit declarations made by the ac......