Kirklin v. State
| Decision Date | 06 July 1910 |
| Citation | 53 So. 253,168 Ala. 83 |
| Parties | KIRKLIN v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Shelby County; A. H. Alston, Judge.
John Kirklin was convicted of murder, and he appeals. Reversed and remanded.
Kirklin was indicted for killing Tom Brasher. The evidence excepted to is sufficiently set out in the opinion. At the request of the state the court gave the following charge: "(4) If you believe from the evidence that the defendant, in this county and before the finding of this indictment, killed Tom Brasher by shooting him with a gun, with malice aforethought he is guilty of murder; and if said killing was willful deliberate, malicious, and premeditated, and the deliberation and premeditation existed for only a moment before the fatal shot was fired, the defendant is guilty of murder in the first degree."
J. I Abercrombie and McMillan & Haynes, for appellant.
Alexander M. Garber, Atty. Gen., for the State.
The solicitor asked the state's witness Sadie Clerkley the following question: "What did Belle Kirklin say, after she came up, about John Kirklin, the defendant, coming to her house to get a gun?" The defendant objected to said question, on the ground that it called for irrelevant illegal, and incompetent evidence. The court overruled the defendant's objection, and allowed the witness to answer said question. The witness answered: "Mrs. Belle Kirklin said, if John had listened to her, this would not have happened; that John came to her house to get her husband's gun; that she tried to keep him from taking the gun; that he, using an oath, said he was going to take the gun, and he took the gun and went down toward the branch with it." The defendant moved the court to exclude the evidence from the jury, upon the ground that it was irrelevant, illegal, and incompetent. The court overruled the motion. The defendant reserved exceptions to both rulings of the court. The question called for hearsay evidence, and the answer was hearsay evidence. It was not in any sense a part of the res gestæ. The question called for illegal evidence, and the answer was illegal evidence; and the court erred in allowing the same over the objection of defendant.
After defendant had testified as a witness in his own behalf, the court allowed the state, over the objection of the defendant, to offer the evidence of one N.M. Davis to the effect that said witness knew the general character of defendant in the community in which he lived, and that it was bad. There was no error in this ruling of the court. The defendant, having made himself a witness in his own behalf, was subject to impeachment, and general bad character affects one's credibility as a witness.
The deceased was shot twice by defendant at close range inflicting such wounds that he fell on the spot and had to...
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...v. State, 197 Ala. 185, 72 So. 405; Logan v. State, 149 Ala. 11, 43 So. 10; McEwen v. State, 152 Ala. 38, 44 So. 619; Kirklin v. State, 168 Ala. 83, 53 So. 253; Brooks v. State, 32 Ala.App. 389, 27 So.2d 48; Shikles v. State, 31 Ala.App. 423, 18 So.2d 412; Braseale v. State, 26 Ala.App. 519......
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Moomaw v. State, 8 Div. 259.
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