Kinsey v. State

• Decision Date: 08 April 1920
• Docket Number: 8 Div. 200
• Citation: 85 So. 519,204 Ala. 180
• Parties: KINSEY v. STATE.
• Court: Alabama Supreme Court

85 So. 519

204 Ala. 180

KINSEY v. STATE.

8 Div. 200

Supreme Court of Alabama

April 8, 1920

Appeal from Circuit Court, Lauderdale County; C.P. Almon, Judge.

Howard Kinsey was convicted of murder, and he appeals. Reversed and remanded. The facts sufficiently appear from the opinion of the court.

Simpson & Simpson, of Florence, for appellant.

J.Q Smith, Atty. Gen., for the State.

McCLELLAN J.

On January 1, 1919, Ed Gentry's lifeless body was found in a field, near a public road, two miles out of Florence. He had been shot both through the head and the heart. Kinsey, the appellant, and Lester Staggs were arrested for his murder. On Staggs' trial he was convicted; and on appellant's trial a few days later he was adjudged guilty of murder in the second degree and given sentence of 24 years. That Staggs and appellant went with Gentry to the neighborhood of the crime, for the purpose of getting whisky, was satisfactorily established by the evidence. The prosecution offered testimony in recital of statements, incriminatory in nature made by the appellant. They are characterized in the record as confessions, and, in a sense, some of them might be so regarded. The former sheriff, Romine, testified that appellant, after arrest, made two or three statements to him or in his presence; and that, in substance these statements were voluntary, no threats, or other invalidating acts or words being applied by any one to induce appellant to make these statements.

On his examination in chief appellant testified as follows:

"When we got near the street where there was a little stand, Staggs stepped behind Gentry, and we went to the Huntsville road to get the whisky. Staggs said, 'You stay here until we get the whisky.' I thought I won't go; Staggs might accuse me of stealing his whisky. When Staggs and Gentry got about 50 yards from the road, two shots fired. I went down to see what they were shooting, and I met Staggs about halfway down from where the body was, and Staggs said: 'Come on Kinsey. I have got the money. Come on.' I would not do it and went on down where Gentry was. When I got down there I placed my face on his breast, and he was dead. I looked at Gentry's face, and it was bloody. I got the umbrella and placed it over his face, and placed his hands beside him. Staggs said, 'Come on,' and grabbed me and shook me and said, 'Are you going to tell this?' He said 'If I knew you would, I would blow your damn brains out right now.' I said, 'I ain't going to tell it,' and I said, 'If I had known this was what you were coming for I would not have come.' He said for us not to go in the market together. I waited until he went in, and then I went in. He closed the market, and we went down together, and Percy Staggs went with us. After he left and after Burn Hendon passed Staggs said, 'Kinsey, they are going to arrest us on suspicion,' and I said, 'I ain't going to swear to nothing.' He said 'You will have to swear to something.' He said: 'You swear you killed him in self-defense, and I will pay your lawyer's fee, and it will not cost you a penny.' He said, 'You could make your defense because you both go to see the same girl.' No, sir; I never had the watch offered as evidence in my possession. I never had my hands on it. I did not give that watch to Staggs, and told him to keep it."

Immediately succeeding this testimony this question was propounded by counsel, "Were you afraid of Staggs?" The court sustained the prosecution's objection to the question but no ground of objection was stated. Some of the statements attributed to appellant by the witness Romine and admitted by the appellant to have been made by him to that witness, if not others, consisted with what the appellant testified Staggs told him to say (quoted above) in explanation of the cause and circumstances of Gentry's death. It was decided in Johnson v. State, 102 Ala. 20, 21, 16 So. 99 (in response to rehearing) that an exception to the general rule that a witness may not testify to his uncommunicated motives and intention exists where the witness admits that he made a statement attributed by others to him. This exception comprehends the right of even a witness to explain "the nature, circumstances, meaning and design" of what he said, and "he may be asked the motive by which he was induced to use such expressions." This doctrine of Johnson v. State was accepted and applied in Lowman v. State, 167 Ala. 57, 52 So. 638; Williams v. State, 123 Ala. 39, 26 So. 521; Postal Co. v. Hulsey, 115 Ala. 193, 207, 22 So. 854; Henry v. State, 107 Ala. 22, 26, 19 So. 23; Anderson v. State, 104 Ala. 83, 86, 87, 16 So. 108. In the last cited case it was held--notwithstanding the form of the question--that a witness might testify in explanation of discrepancies between her present testimony and that given on a former hearing of a bastardy proceeding that she, the witness, was "scared and embarrassed before the justice of the peace"; the ruling being referred for authority to Johnson v. State, supra. It appears from the consideration accorded by this court to the doctrine of the Johnson Case and its application to concrete cases that the exception's effect is not restricted to instances where cross-examination of the witness has elicited the subject for the application of the rule of the Johnson Case. Its design is to give the jury, as well as the witness, the benefit of whatever circumstance or explanation, including...