Lewis v. State

• Decision Date: 08 April 1915
• Docket Number: 287.
• Citation: 68 So. 792,13 Ala.App. 31
• Parties: LEWIS v. STATE.
• Court: Alabama Court of Appeals

68 So. 792

13 Ala.App. 31

LEWIS v. STATE.

No. 287.

Court of Appeals of Alabama

April 8, 1915

Rehearing Denied May 11, 1915.

Appeal from Circuit Court, Henry County; M. Sollie, Judge.

Loyd Lewis was convicted of homicide, and he appeals. Affirmed.

Espy & Farmer, of Dothan, for appellant.

W.L Martin, Atty Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

THOMAS J.

The caption of the record showing the organization of the court at which the trial was had is in the usual and approved form except that, instead of stating positively whether the term at which the court was held was a regular, special, or adjourned term of the court, it states it alternatively as follows:

"At a regular, special, or adjourned term of the circuit court of Henry county, Ala.," etc.

However, it appears from the judgment entry that the date of the trial was on March 14, 1914, which we judicially know to be during the time prescribed by law for the regular term of the circuit court of Henry county, and, consequently, that a trial on that date by that court could not be at a special or adjourned term, but only at a regular term. Gen.Acts 1911, p. 728. We are further fortified in this position by the fact of the absence in the record of any order for a special or adjourned term.

The evidence outside of the defendant's proved admissions tending to connect him with the commission of the homicide charged was entirely circumstantial; since no one saw the killing, and the first known of it was when the deceased was found dead in the public road by a traveler passing along some hours after the killing. The state first introduced as a witness one W.W. Oliver, the son of deceased, who, after testifying that the defendant came to witness' house that morning before the killing that afternoon on an occasion when witness' father, the deceased, was present, was then asked by the state, over the objection and exception of defendant, the following questions, to which he gave the following answers:

"Q. What did the defendant say to him [meaning to witness' father]? A. He told my father he was going to whip me. Q. What did your father say? A. He told him he would have to whip him first. Q. What did he say to you before he left? A. He said he was going home, and he was coming back, and when we met again I would regret what I had done. [Witness further testified that his father was still present and heard defendant make the above statement to witness.] Q. How long was it from the time your father told him he would have to whip him first before he [defendant] told you that? A. To the best of my judgment, it was about three minutes."

These conversations took place, as stated at witness' house in the morning about 10 or 11 o'clock, after which defendant left, and returned again about 1 or 2 o'clock in the afternoon with a gun in his buggy. At that time witness' father, who was still at witness' house, and had just hitched up his horse preparatory to driving off, also had his gun in his buggy. The two (defendant and deceased) then drove off down the road in the same direction at the same time, one in one buggy, and one in the other, with their respective guns, and in about 30 minutes after they left witness heard the report of a gun in the direction in which they had gone.

Even assuming that the conversation which took place that morning at witness' house between defendant and deceased and the witness, before detailed, was inadmissible, as contended, as a part of the res gestae, because not sufficiently connected in point of time to show it to be a part of a continuous transaction (but see Jordan v. State, 81 Ala. 20, 1 So. 577; Armor v. State, 63 Ala. 173; Fallin v. State, 86 Ala. 15, 5 So. 423), yet, it was certainly admissible for the purpose of showing that what defendant said to witness was intended as a declaration of hostility towards deceased, and was explanatory of defendant's purpose in returning later with a gun. 1 Mayf.Dig. 837; Maxwell v. State, 11 Ala.App. 53, 65 So. 732; Campbell v. State, 133 Ala. 87, 31 So. 802, 91 Am.St.Rep. 17; Maddox v. State, 159 Ala. 58, 48 So. 689.

When, after defendant had made the threat to whip deceased's son, and after deceased had told defendant that before he (defendant) could whip his (deceased's) son he (defendant) would have to whip him (deceased) first, the defendant then said that he (defendant) was going home and was coming back, and that when he came back the son would regret what he had done, it--what defendant last said--amounted to a declaration of hostility towards deceased, who had announced that he would take his son's part, as well as it amounted to a threat against deceased's son. It is always competent to prove any threats or declarations of hostility made by the person charged with the homicide against the person slain. In this case such a fact would be a circumstance which, in connection with the other facts and circumstances of the case we have detailed, would tend to show that defendant, and not some one else, killed deceased, and that such killing was done feloniously, and not in self-defense, as the defendant claimed. Hudson v. State, 61 Ala. 333; Johnson v. State, 87 Ala. 39, 6 So. 400; Barnes v. State, 88 Ala. 204, 7 So. 38, 16 Am.St.Rep. 48; 1 Mayf.Dig. 837. Consequently, there was no error in the action of the court in overruling the mentioned objections of defendant.

The defendant introduced a number of witnesses who testified to his general good character. The state, over the objection and exception of the defendant, was permitted to ask on cross-examination each of these character witnesses this question, "Is it not a fact that the defendant's general character in the community in which he lives is that of a drunkard?" Every one of these witnesses answered, "Yes, sir," without qualification or equivocation, except the last one, who answered evasively, "Yes, sir; he gets drunk." The defendant separately and severally objected to and moved to exclude each answer as and when given by the witnesses upon the same grounds as were assigned in objections to the questions, and reserved in each instance an exception to the action of the court in overruling the motion. If, instead of objecting to the answer of the last witness as a whole, the defendant had objected to and

moved to exclude that part of it to the effect that defendant "gets drunk," and had assigned proper...