Kennedy v. State
| Citation | 85 Ala. 326,5 So. 300 |
| Parties | KENNEDY v. STATE. |
| Decision Date | 18 December 1888 |
| Court | Alabama Supreme Court |
Appeal from circuit court, Escambia county; JOHN P HUBBARD, Judge.
Charles Kennedy was indicted and convicted of the murder of William E. Perry, and appeals.
John Gamble, for appellant.
Thos N McClellan, Atty. Gen. for the State.
The defendant is indicted for shooting and killing one Perry with a pistol, while traveling on a train of cars between Mobile and Montgomery. He claimed that the deceased had used insulting words towards him, and had assaulted him, inflicting a slight wound on his neck. The witness Elliott, upon the defendant's complaining that his throat hurt him, just after the killing, made examination of the place in the night-time, using for this purpose a lantern. He was asked by the solicitor what he was accustomed "to use the lantern for," to which he replied that he used it "for all purposes,-to see in the dark, to examine tickets and money etc.," he being the conductor on the train. This question and answer were objected to by defendant, and the objections overruled by the court. In this we think there was no error. The uses to which the lamp was ordinarily put tended to show the uses to which it was adapted, and in this manner explained the capacity or candle-power of the light. If it was suitable to examine money and tickets in the dark, the jury might well infer that it was equally suitable for the examination of the alleged injury on the defendant's neck, which was the use to which the witness had put it, and in reference to the results of which he was undergoing examination. This witness is shown not to have been present at the time of the shooting, he being then in another coach. Upon receiving information as to the difficulty, he went into the car where it had occurred. How many minutes this was after the killing, the bill of exceptions fails to disclose. In view of this state of the evidence, the court properly sustained an objection by the state to the question proposed to the defendant, "What did he say?" The answer of the defendant, conceding that it would have reference to the homicide, is not shown to be so closely connected with the main transaction-the act of shooting-as to constitute a part of the res gestæ. We cannot know from the record that it would not have been narrative merely of a by-gone transaction. To authorize the admission of such evidence it must be shown to be "contemporaneous" with the main transaction, in the sense in which we have heretofore explained this term, and upon which we need dwell at no length at this time. Railroad Co. v. Hawk, 72 Ala. 112; Dismukes v. State, 83 Ala. 287, 3 South. Rep. 671; Burns v. State, 49 Ala. 370. The same objection applies to the other questions seeking to elicit from the witness Elliott any declarations made by the defendant subsequent to the killing, and relevant to it.
The testimony of the witness McCarron, taken before the magistrate on the preliminary investigation of the facts attending the killing, having been reduced to writing, the court did not err in refusing to allow him to be cross-examined as to garbled extracts taken from the writing, with a view of contradicting or impeaching him. The court properly required that the entire writing should be shown or read to the witness and go to the jury. Wills v. State, 74 Ala. 21; Gunter's Case, 83 Ala. 96, 3 South. Rep. 600. Nor was the charge of the court to the jury erroneous, that the paper should not be treated as original evidence of the facts of the case, nor be received for any other purpose than that of contradicting or impeaching the witness. Jones v. Pelham, 84 Ala. 208, 4 South Rep. 22. The paper was entire and not severable, and it was impracticable to admit a part of it to go to the jury. The practice in such cases is to admit the entire paper, and limit its effect as evidence by a proper charge to the jury, as was done by the circuit court on the trial in this case. Wills v State, 74 Ala. 21, supra.
Exception is taken to the charge of the court touching the dying declarations of the deceased as to the circumstances of the homicide. This charge was that these declarations were to be considered by the jury "just as though deceased had been sworn and put on the stand and testified as a witness to the words used in his dying declaration." This charge is liable, as we readily see, to a construction which would render it erroneous; but it is equally capable of being so construed as to make it announce a correct proposition of law. It does not necessarily instruct the jury as to the degree of weight to be given such declarations, nor does it ignore the principle that such evidence is to be received with caution and weighed with care in view of the fact that the accused had been deprived of the power of cross-examination; or that the circumstances of the killing may have been attended by...
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Washington v. State
...and subscribed by him until after the writing has been produced and read or shown to him. Wills v. State, 74 Ala. 21; Kennedy v. State, 85 Ala. 326, 5 So. 300; Manning v. State, 217 Ala. 357, 116 So. 360; Kennedy v. State, 240 Ala. 89, 196 So. 884; Parker v. State, 266 Ala. 63, 94 So.2d 209......
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Weaver v. State
...contradictory statement without also showing the noncontradictory statement, the whole of the document is admissible, Kennedy v. State, 85 Ala. 326, 5 So. 300 [ (1888) ], 1 McElroy, supra. The ruling of the trial court in this regard is in accord with the authorities cited above and the con......
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Manning v. State
...16, 22, 2 So. 683; Carden v. State, 84 Ala. 417, 420, 4 So. 823; Humber v. State, 19 Ala.App. 451, 455, 99 So. 68. In Kennedy v. State, 85 Ala. 326, 331, 5 So. 300, Justice Somerville observes: "The testimony of the witness McCarron, taken before the magistrate on the preliminary investigat......
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Sims v. Struthers
...by the jury, and that separation of the former part from the latter part is impractical, the whole may be proved: Kennedy v. State, 85 Ala. 326, 5 So. 300, 301 (Murder; McCarron testified for the state; in cross-examining McCarron, accused used McCarron's written testimony given on the prel......