Lowman v. State

• Decision Date: 17 June 1909
• Citation: 50 So. 43,161 Ala. 47
• Parties: LOWMAN v. STATE.
• Court: Alabama Supreme Court

50 So. 43

161 Ala. 47

LOWMAN v. STATE.

Supreme Court of Alabama

June 17, 1909

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

George W. Lowman was convicted of homicide, and he appeals. Reversed and remanded.

Bilbro & Moody, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

SAYRE J.

The wife of juror Hall and defendant's mother-in-law were first cousins. They were not related by consanguinity or affinity. Kirby v. State, 89 Ala. 63, 8 So. 110; Danzey v. State, 126 Ala. 15, 28 So. 697. "Though the consanguinei of the wife are always related by affinity to the husband, and the consanguinei of the husband to the wife, it is to be remarked, on the other hand, that the consanguinei of the husband are not at all necessarily related to the consanguinei of the wife. * * * Nor is the husband related to the affines of the wife, nor vice versa." 2 Steph. Com. 285. For the error in allowing the state's challenge of this juror for cause the judgment of conviction must be reversed.

A witness for the state having been asked on cross-examination "Have you not been taking an interest in this prosecution?" answered, "Well, I have; only telling about who the witnesses were." The defendant's motion to exclude the last clause of the answer was properly overruled. The witness was sworn to speak the truth, the whole truth, and nothing but the truth. If it be conceded that the answer went beyond the inquiry, the witness' explanation of the extent of his activity was admissible and competent, and its allowance at the time was within the discretion of the court.

There was testimony to the effect that the deceased, some days before the killing, had gone to defendant's house in his absence, and had made an improper proposal to the latter's wife, which fact she had communicated to defendant; that defendant had advised with a brother of his wife about the wrong alleged to have been done to him by the deceased, and at the time of the killing had gone to the place where it occurred with Jim Cunningham, another brother of his wife, to see defendant about it. This brother was present at the killing. It was not denied that defendant had killed deceased by shooting him with a gun. In connection with these facts it was competent for the state to show that defendant and the last-Fnamed Cunningham had been shooting in the morning before the homicide, as tending in some slight degree to show preparation, and hence premeditation. But the evidence that the same Cunningham had fled from the scene after the killing was not competent. If the two had conspired to take the life of deceased, the blow had been stricken, the common purpose had been accomplished, and the subsequent acts of the accomplice were not admissible as evidence of the defendant's guilt. It shed no light on the fact or intent of defendant's act then past. Williams v. State, 81 Ala. 1, 1 So. 179, 60 Am. Rep. 133; Everage v State, 113 Ala. 102, 21 So. 404.

There had been evidence to show a community of purpose on the part of defendant and Andy Cunningham to do violence to the deceased. If it be conceded that this evidence, as it stood at the time of the admission of evidence of threats made by Andy in the absence of defendant, was insufficient to make out a prima facie case of conspiracy, and therefore that there was error in admitting the evidence of such threats such error...