Kiel v. State
| Decision Date | 30 June 1938 |
| Docket Number | 1 Div. 309. |
| Citation | 184 So. 208,28 Ala.App. 308 |
| Parties | KIEL v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Oct. 4, 1938.
Appeal from Circuit Court, Clarke County; Joe M. Pelham, Jr., Judge.
Arthur Kiel was convicted of murder in the second degree, and he appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in Kiel v. State (1 Div. 38) 184 So. 210.
Granade & Granade, of Chatom, for appellant.
A. A. Carmichael, Atty. Gen., and Wm. H. Loeb Asst. Atty. Gen., for the State.
The homicide was committed at night in a room about sixteen by eighteen feet where a number of negroes were gathered for a supper and for fun and frolic. There was but one light in the room and that was a lamp. The deceased, Sam McVay, was drinking and circulating among those present and on two occasions had put out the light. Just before the fatal difficulty he was warned by several of those present not to put out the light again, and one of those who asked him not to put out the light again was this defendant. The third time the deceased, in spite of the request and warning, put out the light, leaving the room in darkness. At this time the difficulty occurred. All of the testimony of the eye witnesses tends to prove that the scuffling and the fighting was between the deceased and Henry Kiel, a brother of this defendant. The deceased died as the result of knife wounds inflicted by some one, but nobody saw who did it. The only testimony, which we can find, tending to connect this defendant with the crime charged is the evidence of several witnesses who testified that a woman by the name of Hattie Bumpers, who was present at the frolic and who some ten or fifteen minutes after the deceased had been cut said And, some time after this, while the parties were going home through the cemetery, Hattie Bumpers again said: "Lord, Arthur done killed that man; Arthur done got himself in a world of trouble; Arthur done killed Sam McVay." This last being said in the presence of the defendant, which he immediately denied.
The foregoing testimony with phraseology differing a little from the several State's witnesses, raises the two questions of merit on this appeal.
By the testimony of all of the witnesses, the exclamation by Hattie Bumpers "that's enough Arthur, that's enough don't let Henry get to him anymore" was said some ten or fifteen minutes after the difficulty. It must be observed, that Hattie Bumpers was not engaged in the difficulty, nor was she being examined as a witness. The testimony was by other witnesses as to what a third party said regarding the difficulty. Whether declarations are admissible as res gestæ depends on whether the circumstances are such that it may be affirmed as reasonably certain that the declarations were produced by, and were instinctive of the occurrences to which they relate, rather than retrospective narratives of such occurrences. Such...
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...R. R. Co. v. Lowery, 184 Ala. 443, 63 So. 952; Dean v. State, 105 Ala. 21, 17 So. 28; Reese v. State, 338 So.2d 495; Kiel v. State, 28 Ala.App. 308, 184 So. 208; Alabama Power Co. v. Ray, 249 Ala. 568, 32 So.2d 219; Espey v. State, 270 Ala. 669, 120 So.2d 904; Smarr v. State, 260 Ala. 30, 6......
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