Jones v. State

• Decision Date: 10 April 1917
• Docket Number: 4 Div. 461
• Citation: 16 Ala.App. 154,75 So. 830
• Parties: JONES v. STATE.
• Court: Alabama Court of Appeals

75 So. 830

16 Ala.App. 154

JONES v. STATE.

4 Div. 461

Court of Appeals of Alabama

April 10, 1917

On Rehearing, June 26, 1917

On Rehearing.

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Rudolph Jones was indicted for murder in the first degree, was convicted of manslaughter, and from the judgment of conviction, he appeals. The facts necessary to a decision of this case sufficiently appear in the opinion. Affirmed.

See also, 13 Ala.App. 10, 68 So. 690

Farmer & Farmer, of Dothan, for appellant.

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

SAMFORD J.

The first insistence of the defendant is that the record does not show that L.H. Brassell, who prosecuted for the state, was appointed by the court. The record shows the following order:

"R.H. Parks, the regular solicitor of this court, being absent and not in attendance by reason of his sickness, the presiding judge of this court appointed L.H. Brassell, Esq. a competent attorney practicing in this court, as special solicitor."

The record shows that this order was made by the court, and we are of the opinion that it is sufficient.

The defendant sought to prove by the witness Peterson that in his opinion the hallooing he heard and to which he had testified in his direct examination was that of a crazy child. It not having been shown that he could distinguish between the halloo of a crazy child or a person in distress the ruling of the court was not error; especially is this so, as the witness testified that, "I could not tell what it was hollering."

After Lightner, a witness for the state, had testified that on the night in question he and another had passed defendant and Frank Palmer in the road, and that a man was lying near the road where defendant and Palmer were, and that defendant said it was a dead man, and Palmer said it was not a dead man, the defendant sought to prove by the witness that he went on a did not tell anybody of the incident--this we presume, on the theory that the witness' failure to tell of the incident would tend to impeach his testimony. In our opinion this would not tend to weaken his testimony, and the court properly excluded it, because there was nothing suspicious in view of the circumstances.

The defendant objected to and moved to exclude the testimony of the witness Holly, who testified to seeing some blood on a pile of shucks in the barn of Frank Palmer some time after the killing. If this testimony did not shed any light on the killing, as claimed by the defendant, it certainly did not injure his cause or prejudice the jury against him; and on the authority of Brindley v. State, 193 Ala. 43, 69 So. 536, Ann.Cas.1916E, 177, the court did not err in its ruling on this question. Furthermore, the evidence tended to show that the deceased was killed near Palmer's place, where the barn was.

The testimony sought to be brought out from Crapps that deceased came to Thomas' house and Kirkland went in the house and brought Thomas out to where deceased was, and that a few minutes after defendant left him that...