James v. State

• Decision Date: 06 June 1916
• Docket Number: 191
• Citation: 72 So. 299,14 Ala.App. 652
• Parties: JAMES v. STATE.
• Court: Alabama Court of Appeals

72 So. 299

14 Ala.App. 652

JAMES v. STATE.

No. 191

Court of Appeals of Alabama

June 6, 1916

Appeal from Circuit Court, Washington County; A.H. Alston, Judge.

Jerry James was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Jerry Hopkins was called as a juror and asked, "Are you opposed to capital and penitentiary punishment?" He answered, "Yes, sir." He was then asked, "You don't believe a man should be sent to the penitentiary or hung for anything?" and he answered, "No sir."

The witness Curtis stated on cross-examination:

"I looked at the place and saw the sign where he was shot with a pistol. I did not see the bullet, but just judged from the sign that it was a pistol. I can tell the difference between a pistol and a rifle hole, and just can't tell positively, but I think it was."

The defendant moved to exclude from the jury the fact that Henry Curtis, the deceased, was killed by a pistol bullet. The other objections and exceptions to evidence sufficiently appear.

The witness Street stated that he had a conversation with Jerry James in May on the train from Wagar about the death of Henry Curtis, and he was asked, "Did you offer him any reward or inducement to get him to talk to you?" and he answered:

"No, sir; no one in my presence offered him any reward at the time he made the statement. I did not threaten him or make him any promises to get him to talk to me."

Whereupon he was permitted to detail the conversation.

The following objections were interposed to portions of the argument of the state's counsel: "It is an awful thing to turn a guilty man loose. It hurts society so," etc.

The following charges were refused to defendant:

(2) If you believe the evidence in this case, beyond a reasonable doubt, you cannot find the defendant guilty of murder in the second degree.

(3) Same as to 2 as to manslaughter in the first degree.

(4) The burden rests on the state of Alabama to show beyond a reasonable doubt that defendant is guilty of either murder in the first degree, murder in the second degree, or manslaughter in the first degree, or you must acquit defendant.

(5) There is nothing improper in the witness J.T. Jones testifying to the bad reputation of the witness Tom Townsend.

(6) There is no evidence before you that witness James Wasp is an interested witness in this case.

(7) If you believe the evidence in this case beyond a reasonable doubt, you cannot find defendant guilty of murder in the first degree.

(8) The burden rests on the state to show by the evidence beyond a reasonable doubt that the intent to kill existed in the mind of defendant at the time decedent was killed, before you can find defendant guilty as charged in the indictment.

(9) There is no evidence in this case of defendant being at fault in bringing on the difficulty.

Granade & Granade, of Chatom, for appellant.

W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

BROWN J.

The juror Jerry Hopkins, on the voir dire examination, stated that he was opposed to capital and penitentiary punishment and it was proper for the court to excuse him from service. O'Rear v. State, 188 Ala. 71, 66 So. 81.

The motion to exclude the testimony of the witness Curtis was properly overruled. No objection was made to the question and the motion to exclude was not made until the witness had been fully cross-examined by the defendant's counsel. Kramer v. Compton, 166 Ala. 216, 52 So. 351; Hudson v. State, 137 Ala. 64, 34 So. 854. Furthermore, there was no dispute that the defendant killed the deceased by shooting him with a pistol, and the testimony of Curtis, to the effect that the wound was inflicted by a shot from a pistol, was in no way prejudicial.

The evidence offered by the state tending to show flight by the defendant was competent, and the objection thereto was properly overruled. Carden v. State, 84 Ala. 417, 4 So. 823; Sylvester v. State, 71 Ala. 17; White v. State, 111 Ala. 98, 21 So. 330.

The witness Townsend testified that he went to Prestwick to arrest the defendant, and that when defendant saw him he ran in the house and shut the door. In this

connection, the witness further testified: "I was sent up there, I went to make the arrest." And was then asked by the solicitor, "Did he know it?" and answered: "I don't know, sir; unless some one told him." Even if it be conceded the question was objectionable, the answer, being a negative one, was without possible prejudice to the defendant. Furthermore, it appears in this record that no objection was made to the question until the witness had answered it. Kramer v. Compton, supra. "The movements, appearance, and bearing of the accused and his behavior when charged with crime or confronted with the consequences or with the scene or the surroundings of the crime with which he is charged are always relevant. So, the conduct of the prisoner when attempt was made to arrest him shortly after the commission of the offense was properly allowed to be proved to show his criminal intent," etc. Underhill, Crim. Evidence, § 117; Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am.St.Rep. 28.

It was likewise proper to allow the defendant to show his movements and appearance--that he was frightened--at the time and immediately after the difficulty, matter that was of the res gestae, and pertinent to the question of the defendant's imminent peril at the time the shot was fired, or the defendant's honest belief in the apparent imminent peril, if such was shown, and the testimony of the witness Wasp showing that the defendant ran by the house and entered from the rear of the house, and his statement that he was frightened or appeared to be frightened, was competent and properly admitted. Prince v. State, supra; Burney v. Torrey, 100 Ala. 157, 14 So. 685, 46 Am.St.Rep. 33; S. & N.A.R.R. Co. v. McLendon, 63 Ala. 266. But the court properly sustained the objection to the question asked the witness, "How could you tell he was frightened?" While this question would have been proper on cross-examination of the witness for the purpose of testing his credibility, it was not proper on direct examination. Prince v. State, supra. And the court's ruling in refusing to allow the defendant to show that defendant requested the witness to allow defendant to sleep with witness was also correct. This was not a part of the res gestae and was not admissible. Livingston v. State, 7 Ala.App. 45, 61 So. 54; Lundsford v. State, 2 Ala.App. 38, 56 So. 89.

The question asked the witness Wasp, "I will ask you whether or not you heard Jerry James' wife say: 'Run! run! They are shooting at us. They have a pistol' "--was leading, and the objection of the solicitor on this ground was properly sustained. Anderson v. State, 104 Ala. 83, 16 So. 108; Cooper v. Slaughter, 175 Ala. 217, 57 So. 477. Furthermore, the witness stated in response to other questions that he heard no remark about a pistol.

The state's evidence tended to show that John Rogers, the deceased, and others, followed the defendant and his wife from the depot, the defendant and his wife going in the direction of their home, and that, when Rogers, and those with him caught up with the defendant and his wife, Rogers said, "I asked Jerry to loan me my pistol, and he said, 'Wait until I give it to you,' and turned around and shot"; that Rogers had requested the defendant to let him have the pistol before, but defendant had refused. The defendant offered evidence tending to show that Rogers and these other parties followed defendant and his wife, and, before the defendant shot and killed Curtis, that Rogers and his crowd shot two or three times at defendant and his wife, and that they ran toward their house, and as defendant ran away he fired back at his pursuers. This evidence reasonably points to the conclusion that these parties were acting by preconcert to pursue the defendant and recover the pistol, and the conversation between Rogers and Curtis at the depot was admissible. Newsom v. State, 72 So. 579; McAnally v. State, 74 Ala. 9; Hunter v. State, 112 Ala. 77, 21 So. 65.

The court allowed the defendant to prove by the witness Ross that he heard a conversation between Rogers and Pete Curtis that night before the killing, in which it was said "Let's go and get the gun," "the gun that Jerry has." Motion was then made by the solicitor to exclude the evidence as to this conversation, which was sustained by the court. In this the court committed error. Evidence having been offered tending to show and reasonably pointing to the...