Key v. State

• Decision Date: 01 May 1913
• Citation: 8 Ala.App. 2,62 So. 335
• Parties: KEY v. STATE.
• Court: Alabama Court of Appeals

62 So. 335

8 Ala.App. 2

KEY v. STATE.

Court of Appeals of Alabama

May 1, 1913

Rehearing Denied May 19, 1913

Appeal from Circuit Court, Russell County; M. Sollie, Judge.

El Key was convicted of crime, and he appeals. Affirmed.

Glenn & De Graffenried, of Seale, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin, Asst Atty. Gen., for the State.

PELHAM J.

The statements made by the deceased shortly before his death under the circumstances they were made show that he realized that he was in extremis, and were properly admitted as a dying declaration. Ex parte Key, 5 Ala. App. 274, 59 So. 331; Gilmer v. State, 61 So. 377.

The statement made by the trial judge that "this case is going to be submitted to the jury to-night" does not show in our opinion, as contended in argument for appellant, that the court violated the constitutional guaranty given the defendant to have "a fair and impartial trial before a lawful jury." The recitals of the bill of exceptions in this connection show that the remark was called forth only after counsel had in the judgment of the court consumed unnecessary time in the examination of a witness, repeatedly re-examining the witness by permission of the court after turning him over to opposing counsel for examination, until the court gave this caution as necessary in its judgment as having "due regard for orderly proceeding and economy of time," etc., in transacting the business before the court.

The witness Hightower was shown to live close to the place known as Perry's store, that he knew the place where the deceased was killed, and was thoroughly familiar with the surroundings. Nonexperts can give their opinion upon certain subjects with which they are familiar, the proper predicate being that the witness is acquainted with the thing about which he testifies, and that it requires no training, skill or special knowledge or experience to enable the witness to form an opinion or judgment. There are many questions upon which a nonexpert may express his judgment or opinion. Baker v. Cotney, 142 Ala. 566, 38 So. 131; Williams v. State, 147 Ala. 10, 41 So. 992. It was shown that this witness Hightower had knowledge of facts giving him an opportunity to form a judgment as to whether the light from Perry's store on a dark night would light up the place where the deceased was killed, and the court was not in error in overruling the defendant's objection to the question of the solicitor calling for this testimony by the witness. It seems to us the statement was of fact based on actual knowledge gained by experience rather than the expression of an opinion or conclusion ( Dupree v. State, 148 Ala. 620, 42 So. 1004); but, however that may be, the question was not subject to the general objection interposed by the defendant (Bufford v. Little, 159 Ala. 300, 48 So. 697; Montgomery v. State, 160 Ala. 7, 49 So. 902).

The testimony of Jeanette Green that appellant argues was not properly admitted was competent as going to show threats by the defendant, and to prove a motive for the commission of the offense. Moreover, the objections are not shown to have been made to the questions before they were answered. Hudson v. State, 137 Ala. 60, 34 So. 854; W.U. Tel. Co. v. Bowman, 141 Ala. 175, 37 So. 493.

What the defendant said to Curtis Baker, while he, the defendant was in jail, would have been purely a self-serving declaration made to a...