Livingston v. State
| Decision Date | 19 November 1912 |
| Citation | 61 So. 54,7 Ala.App. 43 |
| Parties | LIVINGSTON v. STATE. |
| Court | Alabama Court of Appeals |
On Rehearing, Jan. 23, 1913
Appeal from Circuit Court, Lamar County; Bernard Harwood, Judge.
Morris Livingston was convicted of murder in the second degree, and he appeals. Affirmed.
For opinion of Supreme Court reversing judgment, see 61 So. 53.
Walter Nesmith, of Vernon, J.C. Milner, of Birmingham, and Kirk, Carmichael & Rather, of Tuscumbia, for appellant.
R.C. Brickell, Atty. Gen., W.L. Martin, Asst Atty. Gen., and W.B. Oliver, of Tuscaloosa, for the State.
The defendant was indicted for murder in the first degree, was convicted of murder in the second degree, and appeals. The evidence showed that the killing occurred in the rear part of a drug store in the town of Vernon. That for the state tended to show that when the defendant came into the store the deceased and another person were sitting in the front part of the store, the two having just been served drinks at the soda water fountain, the deceased having in his right hand the glass containing part of the drink which had been served to him; that on the defendant's saying something to the deceased, both of them walked back to the rear of the store and behind a curtain which separated the rear from the front part of the store, the deceased still having the glass in his hand when he disappeared behind the curtain; that some conversation took place between the two men, which was followed by the sound of a pistol shot from behind the curtain, after which the deceased was heard to say, "He has killed me!" and then was seen to come from behind the curtain and to sink down with his back against the wall just on the front side of the curtain.
A.A Lowery, the proprietor of the drug store, having testified to seeing the deceased come from behind the curtain and sink down, was then asked and answered questions as follows, the defendant objecting to each of the questions on the ground that it called for irrelevant, incompetent, and inadmissible testimony, and moving to exclude each of the answers on the same grounds which were assigned in the objection to the question: It is because of its connection with other subsequently admitted evidence that we regard the testimony thus elicited as relevant and admissible. This testimony was followed by other testimony, which tended to show the situation and surroundings of the deceased as found by the persons who were the first after the shooting to enter the store about or immediately after the time of the defendant's coming out of it. The above-quoted testimony of Mr. Lowery, in connection with testimony which followed it, had a tendency to prove that the conditions found by those who first entered the store after the shooting were as they were at the conclusion of the difficulty, and when the defendant left the scene, and we are of opinion that that testimony was admissible as furnishing support for an inference that such was the fact.
We are not of opinion that the court was in error in overruling objections of the defendant to the testimony of the witness Bankhead as to the position or attitude of the deceased as the witness saw him in the store after he was killed, and as to the position of a soda water glass on the floor within a few inches of the right hand of the deceased, and the appearance of liquid on the floor right near the glass. One of the grounds of objection to this testimony was that it was not shown that the conditions and surroundings were the same at the time in reference to which the witness testified as they were when the deceased sank to the floor after being shot. It is true that the witness did not claim to know that such was the fact. But, as above indicated, there was other testimony before the jury, from which they would have been authorized to infer that the situation and surroundings of the deceased at the time the witness saw him were the same as they were when the defendant left the scene. Evidence from which the jury could so infer is sufficient, though no witness testified that such was the case. It is plain that the testimony objected to had a tendency to prove that the deceased received the fatal wound while he yet held in his right hand the glass containing part of the drink which had been served to him shortly before he and the defendant went to the back part of the store. Evidence offered by the defendant tended to show that the deceased left the glass on the counter before going behind the curtain with the defendant, and that a witness for the defendant accidentally knocked it off the counter after the killing, and the testimony of the defendant himself was to the effect that, when they were behind the curtain, the deceased with his right hand drew a knife from his pocket and attacked the defendant. The conflict of the evidence on this subject presented a question for the jury.
The court sustained the objections of the state to testimony offered by the defendant to the effect that he said, just after he came out of the store: "It was either kill or get killed; he just lacked that much of getting me." It is urged in behalf of the appellant that this testimony should have been admitted as evidence of a declaration which formed a part of the res gestae. We are of opinion that the action of the court in sustaining the objections to this testimony must be upheld on considerations very similar to those which were stated by this court in the opinion rendered in the case of Lundsford v. State, 2 Ala.App. 38, 56 So. 89, in support of the conclusion that evidence of certain declarations of the defendant in that case was not admissible because not really forming a part of the transaction under investigation. On the face...
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... ... 24A C.J.S. Criminal Law § 1842 (1962). See also Brannon v. State, 12 Ala.App. 189, 67 So. 634, 635 (1914), cert. denied, 191 Ala. 29, 67 So. 1007 (1915); Livingston v. State, 7 Ala.App. 43, 61 ... 993 So.2d 937 ... So. 54, 57 (1912) (on rehearing). As Presiding Judge Bowen noted in applying the invited error doctrine, "It would be a sad commentary upon the vitality of the judicial process if an accused could render it impotent by his own choice." Murrell ... ...
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...See also Brannon v. State, 12 Ala.App. 189, 67 So. 634, 635 (1914), cert. denied, 191 Ala. 29, 67 So. 1007 (1915); Livingston v. State, 7 Ala.App. 43, 61 So. 54, 57 (1912) (on rehearing). As Presiding Judge Bowen noted in applying the invited error doctrine, 'It would be a sad commentary up......