Kissic v. State

• Decision Date: 07 March 1957
• Docket Number: 7 Div. 315
• Parties: , 67 A.L.R.2d 530 Onnie KISSIC v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 202

94 So.2d 202

266 Ala. 71, 67 A.L.R.2d 530

Onnie KISSIC v. STATE of Alabama.

7 Div. 315.

Supreme Court of Alabama.

March 7, 1957.

Rehearing Denied April 4, 1957.

Ralph Gaines Jr., Talladega, and Beddow, Gwin & Embry and Roderick Beddow, Jr., Birmingham, for appellant.

John Patterson, Atty. Gen., and Edmon L. Rinehart, Asst. Atty. Gen., for State.

MERRILL, Justice.

Onnie Kissic was indicted and tried for the murder of Nile Collard. He was found guilty of murder in the second degree and sentenced to the penitentiary for thirty years and one day, and he appealed to this Court.

This cause must be remanded for another trial and, for that reason, only such facts will be stated as are required to explain the questions of law to which we address ourselves, and only those questions likely to arise in another trial are treated at length in this opinion.

The deceased, while in his own home, received knife wounds which proved fatal. William Curtis Harper was the person who did the cutting. He was tried a month prior to appellant and convicted. The judgment in his case was affirmed by this Court, Harper v. State, 264 Ala. 510, 88 So.2d 788. Appellant drove the automobile in which he and Harper were riding to the home of the deceased. It was the State's theory that appellant held the deceased while Harper cut him. Appellant's defense was that he was trying to help deceased by pulling Harper off the deceased.

The first question is concerned with a statement admitted into evidence as a dying declaration. Herman Ragsdale, a neighbor of deceased, drove him to the hospital immediately after the cutting. He testified that during the ride to the hospital he told Collard that he was not dying, but Collard's reply was 'Yes, I am cut to death;' and later, as he nearly ran the car off the road at a high speed, the deceased said 'Herman, I'm dying but don't wreck this car and kill me.' Ragsdale testified that he then asked the deceased who cut him and Collard answered 'Curtis Harper cut me and Onnie helped him.' They arrived at the hospital between three and four o'clock in the afternoon, and Collard died a few hours later.

The two statements preceding the dying declaration were sufficient predicates. We have held that it is not necessary that deceased should have made a specific statement to the effect that he was conscious of impending death. It is only necessary that the circumstances and the statements made by deceased should warrant the inference that deceased felt that he was fatally wounded and would die. Gurley v. State, 216 Ala. 342, 113 So. 391; Gerald v. State, 128 Ala. 6, 29 So. 614; Shikles v. State, 31 Ala.App. 423, 18 So.2d 412, certiorari denied, 245 Ala. 641, 18 So.2d 417.

Appellant argues that the part of the dying declaration '* * * and Onnie helped him' was not a collective fact but an illegal and inadmissible conclusion. We cannot agree. In Smith v. State, 133 Ala. 73, 31 So. 942, 943, this Court held that when deceased, in a dying declaration, said one Batts shot him and also that 'Bob Smith, was trying to shoot me at the same time,' the statement concerning Smith was a statement of a collective fact and was admissible. See Marshall v. State, 219 Ala. 83, 121 So. 72, 63 A.L.R. 560.

Having held that the dying declaration was admissible, this disposes of appellant's contention that he was entitled to the general affirmative charge with hypothesis. The case was properly submitted to the jury. Crowell v. State, 233 Ala. 201, 171 So. 267; Booth v. State, 247 Ala. 600, 25 So.2d 427.

The trial court properly excluded the testimony of the purported dying declaration made to Officer Higgins and the questions raised as to the prejudicial effect of this testimony should not arise on another trial.

Prior to the close of the State's case in chief, the Solicitor made the following statement:

'Mr. Hollingsworth: May it please the Court, at this time the State respectfully requests the Court to call Margie Collard or Margie Kissic as a witness in this case as the Court's witness and the State states the reasons for requesting the Court to do so as follows: That Margie Kissic or Margie Collard was present at the alleged homicide and it is undisputed that Margie Kissic is the sister of the defendant on trial and it is my information that, from the statement that was taken from her the night that the alleged homicide happened, that she made under oath and was taken down by the Official Court Reporter from the 29th Judicial Circuit and taking into consideration her testimony in open court on the trial of the Harper case, the State respectfully requests that she be called by the Court so that the State can have ample grounds and could have ample opportunity to cross examine the witness in case she didn't testify to what the State believes is the truth of the matter----.'

Following objections, further statements by attorneys etc., the court made the following statement, to which appellant excepted:

'The Court: It is in the Court's discretion whether or not to do it. I feel that under the circumstances of she being the sister of the defendant that I am going to call her and that will give both of you the right to examine her fully on cross examination.'

Practically the same procedure was followed when the court called Kenneth Collard, the nine year old son of deceased, as the court's witness. In each instance, the court first questioned the witness, then the state and the defendant cross examined them.

In Hunt v. State, 248 Ala. 217, 27 So.2d 186, 192, we said:

'It is recognized by good authority that the court in its sound discretion may introduce witnesses in a criminal case, though they are not offered by either the state or defendant, especially so as to expert witnesses, originally regarded as 'amici curiae,' from the earliest period. 3 Chamberlayne on Evidence, section 2376, 2552-2570; State v. Horne, 171 N.C. 787, 88 S.E. 433; Morris v. State, 100 Fla. 850, 130 So. 582(9); Buchanan v. State, 95 Fla. 301, 116 So. 275; Hall v. State, 136 Fla. 644, 187 So. 392, 407(44, 45); 16 Corpus Juris 846, Note 69; 23 C.J.S., Criminal Law, § 1017; 70 Corpus Juris 566; § 723, Note 61 et seq.; Gomila v. United States, 5 Cir., 146 F.2d 372; United States v. Guertler, 2 Cir., 147 F.2d 796.'

In Anderson v. State, 35 Ala.App. 111, 44 So.2d 266, 272, the Court of Appeals said:

'It is within the sound discretion of a trial judge, in the interest of truth and justice, to call to the stand and examine, or permit to be examined by both parties, any witness who may be able to shed light upon the issues, the court being careful to preserve an attitude of impartiality. Hunt v. State, 248 Ala. 217, 27 So.2d 186; Gomila v. U. S., 5 Cir., 146 F.2d 372; Roth v. Moeller, 185 Cal. 415, 197 P. 62; State v. Horne, 171 N.C. 787, 88 S.E. 433; Pendleton v. Commonwealth, 131 Va. 676, 109 S.E. 201; Townsend v. City of Joplin, 139 Mo.App. 394, 123 S.W. 474; Merchants' Bank v. Goodfellow, 44 Utah 349, 140 P. 759.'

While the Hunt case, supra, dealt with the calling by the court of an expert witness, some of the cases cited as authority cover a wider field. The Horne case, from North Carolina, deals with expert testimony, but the three Florida cases are in point in the instant case because in each instance, the prosecution requested the court to call the witness because it was reliably informed that the witnesses would repudiate former statements or testimony. The law in Florida seems settled, based upon these cases, that: 'The presiding judge has a right, in the exercise of a sound discretion, to call a witness either for or against the prisoner, and, when so called and questioned by the court, to permit both sides to cross examine him.' The Gomila case, supra , while stating that 'in aid of truth and in furtherance of justice, the court may question a witness,--in fact, he may call and question a witness not used by either party,--but in so doing the court should be careful to preserve an attitude of impartiality and guard against giving the jury any impression that the court was of the opinion that defendant was guilty,' actually turned on the conclusion that the trial court took too prominent a part in the examination of witnesses called by the parties. In the Guertler case, supra, the trial judge directed the district attorney to call a certain witness, and this was held not to be error. In Young v. United States, 5 Cir., 107 F.2d 490, the right of the trial court to call and examine a witness known to be hostile to the government was upheld.

The opinion in Anderson v. State, supra, cites, in addition to some cases already discussed, a criminal case from Virginia. The Pendleton case holds that the court's calling of a witness believed to be hostile to the commonwealth and permitting her cross examination was done in the exercise of a sound discretion, and did not constitute error.

In view of the holdings in Hunt v. State, supra, and Anderson v. State, supra, and some of the cases cited therein, we are constrained to hold that the trial court, in the exercise of its sound discretion, did not err in calling the ex-wife and son of the deceased as the court's witnesses and in permitting them to be cross examined by each side. It is unnecessary for us to pass on the questioning of these witnesses but we again caution that the court's action and questions should be such at all times to preserve the judicial attitude of strict impartiality.

The trial court committed reversible error in permitting an audograph record to be played in the presence of the jury. A few hours after Collard was cut, the solicitor questioned Collard's ex-wife in the presence of several witnesses, one of whom was the official court reporter. The questions and answers were recorded on an audograph record. At the trial, Mrs. Collard was called as the court's witness and, in her direct examination by the court, she put the blame for the killing on Harper and put her ...