Kelley v. State

• Decision Date: 26 January 1933
• Docket Number: 6 Div. 51.
• Citation: 145 So. 816,226 Ala. 80
• Parties: KELLEY ET AL. v. STATE.
• Court: Alabama Supreme Court

145 So. 816

226 Ala. 80

KELLEY ET AL. v. STATE.

6 Div. 51.

Supreme Court of Alabama

January 26, 1933

Appeal from Circuit Court, Marion County; Norman Gunn, Special Judge.

Ernest alias Earnest, Kelley and Noah Kelley were convicted of murder in the first degree, and they appeal.

Affirmed as to Ernest Kelley; reversed and remanded as to Noah Kelley.

BROWN J., dissenting in part.

Ernest B. Fite, of Hamilton, for appellant.

Thos E. Knight, Jr., Atty. Gen., for the State.

KNIGHT J.

The appellants, brothers, were jointly indicted in the circuit court of Marion county of the offense of murder in the first degree. They were each convicted of murder in the first degree, and their punishment fixed by the jury at imprisonment in the penitentiary for life. From sentences in accordance with the verdict of the jury the present joint appeal is prosecuted.

It appears from the bill of exceptions that the appellants are the sons of W. R. Kelley, and the victim of the alleged crime was the brother-in]law of the appellants, having married their sister. The defendants and their brother-in-law resided upon lands of the said W. R. Kelley, and their respective homes were within a distance of about a quarter of a mile of each other. Just a short time-a few days-before the killing the father, two of his daughters, and this son-in-law, became suddenly ill as the result of some supposed poison placed in their food. The son-in-law was of the opinion that Ernest Kelley, one of the defendants, was the guilty agent, and the day before he was killed he made a trip to Hamilton, supposedly to prosecute the said Ernest Kelley. On the part of the defendants, there was evidence of threats to kill made by the deceased against the party who administered the poison, and in which he is said to have stated that he knew the party who caused the poison to be placed in the food, and the evidence leaves no room to doubt that he had in mind the said Ernest Kelley. However, the evidence on the part of the state tended to show that no such threats were made. The evidence does show fully and conclusively that there was considerable feeling between the parties.

If the evidence of the state was to be believed, the deceased was killed in cold blood, without any sort of provocation, in fact was waylaid as he was walking along the road which passed within twenty-five feet of the house of the defendant Ernest Kelley; that he was unarmed, and was in his shirt sleeves and trousers; and further that he was sent to his death without warning of any kind. According to the state's evidence, within a few seconds after the shot was fired from the door of Ernest Kelley's house, the two appellants were seen by a number of witnesses running from the scene of the shooting with shotguns in their hands. The defendant Ernest Kelley admitted that he did the killing, and exonerated his brother. The evidence for the state tended to connect the defendant Noah Kelley with the crime, at least as an aider or abetter before and at the time of the killing. The crime, if any, was committed on or about the 9th day of July, 1931.

The defendant Ernest Kelley, while admitting the killing, asserted that he shot his brother-in-law in self-defense. The evidence in that respect, however, is meager, and we have some doubt of its sufficiency to carry the case to the jury on that theory; nevertheless the trial judge deemed it sufficient, and many of his instructions to the jury were based upon his conclusion that the alleged overt acts of the deceased, coupled with the evidence of threats, entitled the defendants to have the issue of self-defense go to the jury.

The appellant Noah Kelley and his family lived a short distance from the home of Ernest Kelley. The family of the latter spent the night at the former's home on the night preceding the killing, and were there when the shooting occurred. Noah Kelley, according to the testimony of the defendants' witnesses, was with his brother Ernest during the night of July 8, 1931, the night before the killing, and, according to the defendants' testimony, the two brothers slept in a sedge patch on quilts, but returned to Ernest's house the next morning.

On the cross-examination of Clara Kelley, a witness for the state, the attorney for the defendants asked the witness this question: "Did your sister, Emily Burleson, tell you in that conversation that Dove did not want to get in the house with the boys; that he wanted to do what he could to keep down trouble? Did she make that statement to you and did you then make any reply to that?" The court sustained the state's objection to the above questions, saying, "It don't seem to me that is competent. You may make it competent later on. At present, I will sustain the objection." The defendants duly reserved an exception to this ruling of the court. The questions called for immaterial, incompetent, and irrelevant evidence, and the court properly sustained the objection.

On the examination of Golden Howell, the sheriff of Marion county, a witness for the state, the solicitor asked the witness the following question: "Now, I will ask you what Ernest said in the presence of Noah, if Noah was present?" The defendant objected to the question on the grounds that it called for "incompetent, irrelevant and immaterial evidence." The court overruled the objection, and the defendants excepted. Just before the question was asked, and preliminary thereto, a proper predicate had been laid by showing that whatever statement was made by Ernest Kelley was voluntary. The question called for relevant, material, and competent testimony, and the court properly overruled the defendants' objection. The answer of the witness to the question was, "He said he had it to do." Continuing his testimony, the witness testified, "He just said 'Golden, Noah stood with me all the way through.' Noah did not say anything to that." Thereafter, in response to a question by the court, the witness testified, "Noah was close enough to hear him."

On redirect examination of Ernest Kelley, the attorney for the defendants asked him (Ernest) this question: "Now, Ernest, Mr. Wilson asked you about removing some flour up there. What did you do up there, about some flour, at your father's or McGuire's, or whether it was?" The witness, proceeding to answer, said: "Well, there was some flour at McGuire's and papa and Burleson suggested that we should move the flour. ***" Here the solicitor objected to what Burleson and somebody said. The court sustained the objection, and the defendants excepted. In this ruling of the court there was no error. However, the witness continued: "That wasn't any flour that I had carried up there, and I removed it at the suggestion of someone else. I had not put any poison out there in McGuire's flour, the only place I had put any was in my own flour." McGuire is the man this witness (defendant) subsequently killed.

The defendant Ernest Kelley was recalled by the defense, and was asked by the defendants' attorney the following question: "I want to ask you if you were up at McGuire's on the 4th of July, and did you hear him say that he knew the man that poisoned him and he was going to kill the son-of-a-bitch, and that he had served one term in the penitentiary, and he would serve another one?" The solicitor objected to the question; the court sustained the objection; and counsel for the defendants then stated to the court: "I am offering it in the nature of a threat."

The court then stated to counsel for the defendants: "I will let you prove his threat, but not any statement about the penitentiary." The solicitor then stated: "I object to it because it is seeking to try to prejudice the jury and done for the purpose." Counsel for defendant thereupon excepted to the statement of the solicitor and moved the court to enter a mistrial in the cause. The court thereupon instructed the jury: "Gentlemen of the jury, what the solicitor says, and what the attorneys on either side say in these side remarks is not to be taken into consideration by you, and what the solicitor says about 'done to prejudice the jury' is not to be considered by you in considering this case, in any way whatever. No testimony, except what is permitted to go to you from witnesses from this stand, are you permitted to consider. Of course, you can consider the law and instructions, as given to you by the court, and you can consider the argument of counsel when we get to that, but these side remarks are not to be considered by you, and they must not be considered by you in determining the guilt or innocence of these defendants, or either one of them."

The court overruled defendants' motion for mistrial, and an exception was reserved thereto. We are fully persuaded that the very full and timely remarks of the court removed completely any prejudicial effect that the remarks of the solicitor may have produced upon the minds of the jury, and we are here of the opinion that the motion for mistrial was properly overruled.

The court then sustained the state's objection to said question. The action of the court in sustaining the state's objection to the...