Lawler v. State

• Decision Date: 14 February 1928
• Docket Number: 8 Div. 669
• Parties: LAWLER v. STATE.
• Court: Alabama Court of Appeals

115 So. 420

22 Ala.App. 329

LAWLER v. STATE.

8 Div. 669

Court of Appeals of Alabama

February 14, 1928

Appeal from Circuit Court, Franklin County; Charles P. Almon, Judge.

Tommie Lawler was convicted of murder in the second degree, and he appeals. Reversed and remanded.

A.H Carmichael, of Tuscumbia, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

In this case the undisputed evidence discloses that Jake Lawler, the deceased named in the indictment, met his death by having been struck upon his head with the rear gear of a truck wagon, and that this appellant, defendant below, struck the blow or lick. The difficulty, resulting in the death of Jake Lawler, brother of the defendant, occurred at the home of one Ed Grissom, where a number of persons had gathered for a dance. The defendant was convicted of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for a term of 15 years. As stated, there was no denial by defendant that he killed his brother by striking him with the implement above mentioned. He struck one blow only, and this he claimed was in self-defense. On the question of self-defense, in this case, the element of retreat is not involved, as the defendant was a guest in the dwelling house where the killing occurred, and therefore was under no duty to retreat. Crawford v. State, 112 Ala. 1, 21 So. 214. In that case the Supreme Court said:

"A guest in a dwelling house is entitled to the protection the law affords to the owner or more permanent occupant. He may repel trespasses in and upon the house, or repel assaults, actual or menaced, as if he was under his own roof and within his own doors."

See also, Simmons v. State (Ala.App.) 113 So. 466.

The court, we think, ruled correctly in sustaining objection to question propounded by defendant to his witness, Ed Grissom to "Tell the jury whether or not you had requested Tom (meaning the defendant) to assist you in keeping quiet there." There could be no request or other assurance of witness which would authorize the defendant to take the life of the deceased. If the law should justify the accused in the commission of the act complained of, it would of necessity be upon the theory of self-defense; that is to say, in this case, upon the fact that the defendant was in imminent danger, real or apparent, of suffering death or grievous bodily harm by the deceased, and, further, that he was wholly free from fault in provoking or bringing on the difficulty. The evidence sought by the question could shed no light whatever upon either of the above-mentioned propositions, and the court properly so held.

There were several improper questions propounded by the state to defendant upon his cross-examination seeking evidence, which, even under the broad latitude of cross-examination, was inadmissible and illegal. Defendant's objections to these questions should have been sustained, and the court erred in not doing so. These questions related to intent, purpose, and motive of the accused as to certain acts of his in connection with the alleged commission of the offense complained of. Under elementary rules of evidence, a defendant cannot state his uncommunicated belief, motive, or intention, in order to justify himself in committing an act. This rule works both ways, as the matter is here presented, and the court should not have forced defendant, over his proper and timely objections, to give answer to questions seeking to ascertain with what motive, intent, or purpose he did certain things, or tried to do certain things upon the occasion in question. This was not a legitimate line of inquiry, and the objections should have been sustained. The law imposes upon the jury the duty to infer the motive, belief, or intention from the facts and circumstances in the case. A witness cannot testify to such matters. Some of the questions here referred to were as follows:

"You went out there voluntarily and got into it, didn't you?" "You picked it up to hit Jake with?" "When he made his strike at Hosea you prepared to hit him, didn't you?" "Did you undertake to catch him?" "Did you try?"

The insistence by counsel for appellant, in this connection, we think is tenable. In brief it is contended:

"It was not his duty to undertake to catch

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