Levert v. State

• Decision Date: 31 March 1949
• Docket Number: 6 Div. 810.
• Citation: 42 So.2d 532,252 Ala. 308
• Parties: LEVERT v. STATE.
• Court: Alabama Supreme Court

42 So.2d 532

252 Ala. 308

LEVERT v. STATE.

6 Div. 810.

Supreme Court of Alabama

March 31, 1949

Rehearing Denied May 26, 1949.

A A. Carmichael, Atty. Gen., and Thos. F. Parker, Asst. Atty Gen., for the petition.

Lipscomb & Brobston, of Bessemer, and D. G Ewing, of Birmingham, opposed.

FOSTER Justice.

The appellant in this case was convicted of manslaughter in the first degree for the killing of her husband by stabbing him in the neck with a pocket knife. There seems to have been no eyewitness to the event. The defendant admitted the killing in a confession and as a witness for herself, but claimed self-defense, and her evidence tended to establish that defense.

The State introduced Frank Cornelius as a witness, who testified that a short time before the stabbing he was a visitor at the house of defendant and her husband, and about five minutes after he left the house he heard some words, and saw defendant lead her husband out of the back door and place him on a porch of a nearby house, where he died. She at first accused Cornelius of doing it, but the next morning admitted that she did it. Cornelius testified that defendant and deceased were embroiled in argument while he was there, and threats were mutually passed.

The State was permitted to show by the witness that he and defendant each drank whiskey while he was there, and offered to prove that he bought the whiskey which he drank from defendant. There were several questions which sought to elicit such testimony. To all of which the court sustained objection. When defendant was testifying as a witness on cross examination, she was asked by the solicitor if she sold whiskey down there, and she answered 'no'. There was no ruling in that connection. The solicitor in the argument referred to Cornelius (Screwworm) as being 'out there buying whiskey, as usual.' On objection, the court excluded the argument and instructed the jury not to consider it.

The defendant made a motion for a new trial, which was denied.

The Court of Appeals first held that there was no error, and observed: 'In view of the court's rulings and instructions to the jury in connection with Cornelius' testimony, and the abundance of evidence tending to justify the verdict of guilty rendered in this case, we are unwilling to say that the jury disregarded the court's instructions and that the verdict resulted from passion and prejudice engendered during Cornelius' examination.'

On application for a rehearing that court, on careful consideration, changed its ruling by stating:

'In the face of the court's action in sustaining the objection to the questions pertaining to the sale of whiskey by the appellant the solicitor's reference in his closing argument to such sales cannot be regarded lightly. The court did sustain the appellant's objection to such line of argument, and instructed the jury rather perfunctorily to disregard same.

'We of course cannot with certainty measure the substantive injury to appellant's cause by the above occurrences. We are certain however that the possibility of substantial injury is real. This being so justice demands that this case be submitted to another jury free of these extraneous influences.' (Italics ours.)

The proposed evidence that Cornelius bought the whiskey from defendant was evidently a part of the occurrence in which deceased was killed. Of course the fact of her drinking whiskey with the witness then and there, only a few minutes before the killing, when she was quarreling with deceased, was admissible. The general rule is that all the acts, words, signs and declarations of defendant indicating hostility to deceased immediately preceding the encounter, Blair v. State, 211 Ala. 53, 99 So. 314 if relevant, are admissible in...