Jones v. State

• Decision Date: 02 September 1924
• Docket Number: 4 Div. 931.
• Parties: JONES ET AL. v. STATE.
• Court: Alabama Court of Appeals

101 So. 331

20 Ala.App. 247

JONES ET AL. v. STATE.

4 Div. 931.

Court of Appeals of Alabama

September 2, 1924

Appeal from Circuit Court, Crenshaw County; W L. Parks, Judge.

R. J alias Dock, Jones and Parker Jones were convicted of manslaughter in the first degree, and they appeal. Reversed and remanded.

Frank B. Bricken, of Luverne, and Powell &amp Hamilton, of Greenville, for appellants.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

SAMFORD J.

The homicide took place in the public road between Luverne and Brantley, on a Sunday afternoon. According to the testimony of the state's witnesses, no one was present at the difficulty except the defendants and the deceased. Several witnesses testified to having seen the difficulty from a distance, but none were close enough to hear what was said by either party. After the difficulty was over and Briley was dead, as a result of pistol wounds at the hands of one or both of the defendants, the defendants left the scene in a Ford car and drove to Brantley, some miles away. After defendants had offered evidence tending to prove self-defense and that, in the fight between Dock Jones and deceased deceased had Dock Jones down on the ground at the time the fatal shots were fired, and that in the scuffle Jones got sand and dirt in his hair and had his shirt torn, and that his face and shirt were in the same condition when he reached Brantley, the defendant offered to prove by the witness Rainer that Dock Jones' shirt was torn, and that he had sand and dirt in his hair upon his arrival in Brantley. In Little v. State, 18 Ala. App. 98, 89 So. 303, this court held, upon cited authority, that:

"The condition of the assaulted party as the result of the assault was one method of showing the nature and extent of the assault and the injury incident therefrom, and these things were of the res gestæ of the offense charged."

In McCaig's Case, 16 Ala. App. 581, 80 So. 155, it was held admissible that "the clothing of one of the girls was torn." The appearance and description of the body of deceased, and the clothing worn by him at the time of the fatal difficulty, are admissible in evidence. Dorsey v. State, 107 Ala. 157, 18 So. 199. We are of the opinion that a description of the person and clothing of the defendant, shortly after the difficulty, in which there is evidence tending to sustain a plea of self-defense, and where there is evidence of the unchanged condition of defendant and his clothing, is admissible as tending to prove the character of the assault claimed to have been made. In this case the defendants claimed that Dock Jones was engaged in a difficulty with deceased, and that deceased had Jones down on the ground, and was on him at the time the fatal shots were fired by the other defendant; that immediately after the shots were fired Dock Jones got in a car, drove to Brantley, and that no change had been made as to his person or clothing after the difficulty. There having been no intervening cause, his condition and that of his clothing would be presumed to be the same as it was immediately after the shooting and before the difficulty had ended. The court erred in excluding this evidence, and the fact that the defendant had testified to these facts, without objection, would not render the error harmless. The defendant's testimony was burdened with his interest, while the corroborating testimony sought was that of disinterested parties.

The question asked Dr. Morgan, a defendant's witness, on cross-examination, as to whether the bullets could have ranged upward if deceased had been standing, was legitimate on cross-examination in testing the knowledge of an expert witness.

State's witnesses Mesdames Butler, McDougald, Capps, and Dan McDougald were at the house of Charlie Simmons at the time of the shooting, and Mrs. Simmons was also in the house or kitchen. The Simmons house was some distance from where the difficulty took place and not connected with it. Any exclamation on the part of Mrs. Simmons at the sound of the shots was not a part of the res gestæ and inadmissible for any purpose, she not being...