Lowery v. State

• Decision Date: 08 June 1893
• Citation: 98 Ala. 45,13 So. 498
• Parties: LOWERY v. STATE.
• Court: Alabama Supreme Court

13 So. 498

98 Ala. 45

LOWERY v. STATE.

Supreme Court of Alabama

June 8, 1893

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Thomas Lowery was indicted and tried for the murder of Jim Robinson and he appeals from a conviction of murder in the second degree, and a sentence to the penitentiary for 30 years. Affirmed.

The testimony for the state tended to prove the killing of the deceased by the defendant by shooting him in the head with a pistol. The state was permitted by the court to prove the statements of an absent witness-one Swarm-that were made upon the preliminary examination of the defendant, upon a predicate laid by Z. P. Davis, who testified that on the day of the preliminary examination said Swarm was put on the stand for the state, and stated that he lived in Chattanooga Tenn., and that he left Huntsville after the examination, and had not been seen since. Thereupon the state introduced one Grubbs as a witness, who testified as to the statements made by Swarm on the preliminary examination, and stated that the defendant had the opportunity of cross-examining the said Swarm, but did not do so. The defendant objected to the testimony being introduced as evidence on this predicate, and duly excepted to the court's overruling his objection. The defendant also reserved an exception to the court's overruling his objection to the admission of the former testimony of one Beverly Anderson on the preliminary examination, which was introduced under similar circumstances. After verdict and judgment of killing, the defendant moved the court for a new trial on the ground that the defendant should have been granted a continuance as requested by him on account of the absence of his regularly employed attorney; that the defendant should have been granted a continuance on the ground of the absence of several material witnesses; and should be granted a new trial on the ground of a certain article which appeared in the Huntsville Mercury, a paper published in Huntsville, the place of the trial, during the progress of the trial; and "because the court asked the defendant's attorney in open court in the presence of the jury, and while he charged the jury if he insisted on the doctrine of self-defense in the cause;" and because of the discovery of material evidence since defendant's trial and conviction, which evidence was particularly set out in the affidavit of the witness Walker Haywood, who would testify to such evidence. The substance of this affidavit was that the said Walker Haywood would testify that within two or three weeks after the killing he was talking with Ann Robinson, the wife of the deceased, and one of the principal witnesses for the state, about the killing, who told him that the defendant had complained to her that his wife had told him that deceased had outraged her, and that he was angry and indignant about it; that neither the defendant nor his counsel were aware of Haywood's knowledge of these facts at the time of the trial. The court overruled the motions for a new trial, and the defendant duly excepted.

Wm. L. Martin, Atty. Gen., for the State.

COLEMAN J.

The defendant, Lowery, was convicted of murder in the second degree. The questions for consideration arise upon the admission and exclusion of evidence, and the refusal of the court to grant a new trial. One of the witnesses examined for the prosecution on cross-examination, for the purpose of impeaching her testimony, was asked if she had not been guilty of certain specified acts of adultery. An objection to the question was sustained. It may be that on cross-examination a witness who has testified to the good character of a defendant, as evidence to be considered in connection with other evidence affecting the question of guilt or innocence, for the purpose of testing the extent of the witness' information, or the soundness and bona fides of his opinion, may be asked on cross-examination if he had not heard that the defendant had been accused of certain named offenses of a character similar to the one with which the defendant was charged. To...