Liner v. State
| Decision Date | 30 January 1900 |
| Citation | 124 Ala. 1,27 So. 438 |
| Parties | LINER v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Cleburne county court; T. J. Burton, Judge.
M. Z Liner, convicted of manslaughter in the second degree appeals. Reversed.
The defendant was jointly indicted with Bud Bentley, J. M Jordan, and Ezra J. Smith for the murder of Bob Hunnicutt the indictment charging them with murder in the second degree. A severance was had, and defendant Liner was tried separately at the July term, 1899, of the county court, and convicted of manslaughter in the second degree, and sentenced to hard labor for the county for a term of 12 months, and in addition thereto a fine of $500 was imposed upon him. From that judgment this appeal is taken.
The uncontroverted facts were that the three persons who were jointly indicted with defendant were in Heflin, the town in which the homicide occurred, on the evening that it did occur, and were first seen about dark, and that they were strangers there; that defendant was not there that night until about 8:30 o'clock, when the three persons above named and defendant were together, and some one of the four became involved in a quarrel with one Will McDaniel, near the point where the railroad crosses Ross street, in the town of Heflin; that during the quarrel Bob Hunnicutt came up to where the parties were, and a difficulty ensued, in which Bob Hunnicutt received a stab in the breast, from which he died a few days later; that after the difficulty these persons left the town,-going east, along or near the railroad, in the direction of Edwardsville; that they were pursued and overtaken, and three of them were arrested about 1 1/2 miles from Heflin, to wit, Jordan, Bentley, and defendant, but that Smith was not with them, and was not seen any more until sometime after midnight, when he was arrested at or near the depot in Heflin; that defendant, Jordan, and Bentley, when arrested, were taken back to Heflin, and kept there till the next day; that defendant and Smith, when arrested, were both bruised about the head and face; that defendant said when arrested, or while under arrest, that he did not go to Heflin with the other boys, but that he went after they did reaching there on a freight train between 7 and 8 o'clock that evening. The uncontradicted facts also showed that Bob Hunnicutt came to where some one of these four persons were quarreling with Will McDaniel before either of them had ever spoken to him, and began to take the part of McDaniel, and that, after some words had passed between Hunnicutt and one of the four, Hunnicutt knocked one of them down, and McDaniel about the same time knocked another of them down; that, after these two had gotten up, some other words passed between one of them and Hunnicutt, when Hunnicutt knocked his man down the second time. And while this man, which the evidence tends to show was Smith, was down from this blow of Hunnicutt, there is evidence tending to show that Hunnicutt said he was cut, and turned and walked to the railroad, and fell on or near the railroad, when the four persons, or three of them, left the place, as above stated. There was evidence also showing that after the four boys left, or just as they left, Bob Hunnicutt ran to the railroad crossing, and fell with his face downward, and that when he was first reached by any one he was on his back, wounded in the breast. It was also shown without conflict that he was, very soon after he fell, removed to the depot, and that a very short time after his removal (only a few minutes afterwards) a bowie knife and a pair of brass "knucks" were picked up at the place where he was removed from; and that no one of the four (defendant nor none of his associates) were seen at or near the place after Hunnicutt first fell, when, as some of the evidence tends to show, they passed some few steps from him, in leaving, and that none of them were seen in Heflin after that time until they were arrested, as before stated.
S. C. Zaner, Jr., was examined as a witness for the state, and testified substantially as follows: That he was the town marshal of Heflin on the might of the difficulty; that he saw the defendant, on the night Bob Hunnicutt was stabbed, at the hotel in Heflin, where there were all of the defendants who were jointly indicted with the defendant, except Smith; that, after stopping at the hotel a short while, he (the witness) took them to the calaboose; that there were a great many people standing around, talking about the difficulty; that the defendant and the others who were jointly indicted with him continuously denied stabbing Bob Hunnicutt. On cross-examination this witness testified that he never heard any friendly words spoken to or by the defendant and those who were jointly indicted with him; that he heard it said on the night of the difficulty, previous to their arrest, that they ought to be caught and killed; that he thought "Mr. Dan Walraven said it, and also other railroad men"; that this was said while some of the people were getting up the crowd to go after the defendants, and there were present a great many people. Defendant's counsel then asked the witness the following question: "Was there not a considerable crowd there, and did you hear any one condemn what Walraven said (that these boys ought to be caught and killed), and did you hear anybody discourage that idea?" The witness answered: "No; never heard any one." After the witness had answered the question the solicitor objected to the question and the answer, and the court sustained the objection and excluded the answer from the jury. To this action of the court the defendant excepted.
Upon the introduction of all the evidence, at the request of the defendant the court gave to the jury the following written charge: "(5) The court charges the jury that before you can convict defendant upon the theory of a conspiracy between defendant and Jordan, Smith, and Bentley, his alleged associates, you must find from the evidence beyond a reasonable doubt, and to a moral certainty, that they conspired together, before the blow was struck, to do some unlawful act, or to do some lawful act in an unlawful manner and that the fatal wound was inflicted by one of them, and in furtherance of the purpose for which they had so conspired." The defendant then requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: ...
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...appeared to be an attempt by the defense counsel to impeach his own witness and, therefore, was objectionable. The cases of Liner v. State, 124 Ala. 1, 27 So. 438; Jarvis v. State, 138 Ala. 17, 34 So. 1025, and Rogers v. State, 36 Ala.App. 602, 61 So.2d 249, hold that the court may, ex mero......
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