Jackson v. State

• Decision Date: 09 June 1910
• Citation: 167 Ala. 44,52 So. 835
• Parties: JACKSON v. STATE.
• Court: Alabama Supreme Court

52 So. 835

167 Ala. 44

JACKSON v. STATE.

Supreme Court of Alabama

June 9, 1910

Appeal from Circuit Court, Shelby County; John Pelham, Judge.

Ed Jackson was convicted of murder in the first degree, and he appeals. Affirmed.

Frank S. White & Sons and Peters & Wallace, for appellant.

Alexander M. Garber, Atty. Gen., and Borden H. Burr, Sol., for the State.

EVANS J.

The defendant was indicted and tried for the murder of James Wright. He was convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for life. The undisputed evidence showed that the said James Wright was killed in Acton, Shelby county, in house No. 158. This house belonged to the Alabama Fuel & Iron Company, a corporation. Dynamite was exploded under this house (No. 158) and as a result thereof the said James Wright was killed. He and a man by the name of Tom Hudson were asleep in the house at the time of the explosion. There was at the time, a strike among the union labor employés of the said Alabama Fuel & Iron Company, and defendant was vice president of the union. Defendant was jointly indicted with several others. The theory of the state was that the murder was the result of a conspiracy of defendant and several others. The evidence connecting defendant with the crime was circumstantial except that tending to show his confession. On the trial the only exceptions reserved were to the rulings of the court on the admission of evidence. The boy James Wright and the man Tom Hudson refused to go out on the strike and were, at the time, in the employ of said Alabama Fuel & Iron Company. The defendant had worked with said company before he went out on the strike. House No. 159 was next to and very near house No. 158. Among other things state's witness Tom Hudson, testified that he knew defendant, Ed Jackson--he worked there and went out on the strike. State then asked the following question: "Had he lived at number 159--had he lived at house number 159 before he moved out of the company's house and off their property?" Defendant objected to the question, the court overruled the objection, and defendant duly excepted. The court was without error in its ruling as the question called for matter entirely relevant and proper, as tending to show that defendant was familiar with the location where the crime was committed, having lived in the adjoining house.

Dr. Strock, a witness for the state, testified among other things that he went to two houses that were blown up; that the house where the boy was killed was No. 158; that persons were living in all of the houses at the time. The state then asked the question: "Were there any other persons injured in the other houses?" Defendant objected to the question; the court overruled the objection, and defendant excepted. Witness answered, "Yes," and defendant moved to exclude the answer. The court overruled the motion to exclude, and defendant duly excepted. In the light of the evidence which tended to show that the blowing up of all the houses was done upon the same occasion, by the same persons, and was all part of a common design, the ruling of the court was proper. Upon this theory of the case, the matter testified to was part of the res gestæ.

On examination of W. F. Fallon, a witness for the state, he stated among other things: "I arrested Ed Jackson and General Lee and handcuffed them together, and arrested them for the dynamiting that had killed the boy." The state then asked the witness if he (witness) made any statement in the presence of Ed Jackson, the defendant, at the time in reference to the dynamiting. The witness stated that he did. Thereupon the solicitor asked him if at the time any threats were made toward Ed Jackson, any force used of any kind against him, any hope of reward or inducement held out to him, or any fear of punishment of any kind extended to him. Witness stated there was not. Thereupon witness was asked to state what he said to Ed Jackson in connection with the dynamiting for which he had him under arrest. Defendant objected to this question and duly excepted to the court's overruling his objection. The witness answered as follows: "I called his attention to the condition of his pants, and I said, 'Well, Ed, you have done what you said you were going to do, and what we had you in jail for making threats to do. Look at your pants there, they are wet to your knees, and show that you have been out in this grass, and shows that you are guilty. It looks as if you had just come in.' " The state then asked the witness, "Did he make any reply or say anything to this accusation?" The defendant objected to the question; the court overruled the objection, and the defendant duly excepted to the action of the court. The witness responded "He did not state anything at all, just stood mum." As is said in Bishop on Criminal Procedure, vol. 1 (3d Ed.) § 1254, "Where one, in the presence of the accused, makes a declaration involving or implying his guilt, and there is opportunity for reply, and the surroundings and persons are such as render it ordinarily expedient and proper, yet he remains silent, the entire fact may be shown with the other evidence to the jury. The weight of such fact will vary with the circumstances." Or as stated in 12 Cyc. on page 421, "Where, on being accused of crime, with full liberty to speak, one remains silent, his failure to reply or deny is relevant as tending to show his guilt. His silence alone, however, raises no legal presumption of guilt. Its effect is for the jury; and from it, in connection with other facts and circumstances, they may infer that he is guilty." From a consideration of the foregoing authorities, we hold that the court properly ruled in admitting the evidence. But the evidence being admissible the weight to be given it was for the jury to determine.

The state asked the said witness W. F. Fallon if Will McDade, who was shown to have been one of the parties arrested for this dynamiting, made any statement in the presence of defendant. Witness stated that he did. Thereupon the state asked the witness to state what was said by McDade in the presence of defendant at this time. The defendant objected, the court overruled the objection, and defendant excepted to the ruling of the court. The witness answered that "Will McDade stated in the presence of defendant that he, Ed Jackson (the defendant), and several others, whom he pointed out and named, were with the crowd that left the striking miners' tents that night before the explosion and came back after the explosion." There was no motion to exclude this answer, and as the question was capable of eliciting evidence both competent and legal, the court will not be held in error for overruling the general objection to the question. If the answer was, for any legal reason, objectionable, the defendant could have moved to exclude it, and thereby have protected himself from the effects of it.

The same criticism is applicable in the following, which was asked of the same witness. Witness was then asked if, an hour or two after the time, the defendant, Ed Jackson, made a statement in reference to the dynamiting in front of Walker's store as the men were going along, and witness answered that he did. The state then asked the witness if the statements there made or what was there done by Jackson were said and done by him without any force or threats of any kind being used, or without any reward or hope of reward or inducements of any kind being held out or offered to him, and if the statements were voluntary, and witness replied that no threats or force were used, or reward or hope of reward or inducements held out, and that the statements were voluntary. State then asked witness what defendant, Ed Jackson, said and did on the occasion in front of Walker's store. The defendant objected to the question, the court overruled the objection, and defendant excepted to the ruling of the court. The above questions and answers laid a proper predicate to prove a confession by defendant, and the question asked could have been answered by stating a confession. The court therefore was without error in overruling a general objection. No motion was made to exclude the answer, and therefore it need not be considered.

On cross-examination of this witness, defendant asked him if while he was going through the camps where the explosion occurred, he did not meet some parties, and did not have a conversation with them, in which they told him that the parties who did the striking had gone toward the camps of the Dagos. On redirect examination the state asked the same witness the...