Maxwell v. State

• Decision Date: 11 April 1901
• Parties: MAXWELL v. STATE.
• Court: Alabama Supreme Court

29 So. 981

129 Ala. 48

MAXWELL v. STATE.

Supreme Court of Alabama

April 11, 1901

Appeal from circuit court, Bibb, county; John Moore, Judge.

John Maxwell was convicted of murder, and appeals. Reversed.

The evidence for the state tended to show that between 8 and 9 o'clock Sunday morning on November 26, 1899, John Maxwell killed Pat Finnon by shooting him with a pistol; that the shooting occurred in Maxwell's store; that just before the killing, Finnon, the deceased, one McMahon and the defendant were boxing with each other, and after they finished boxing Finnon was standing on the right of Maxwell and told two or three people who were in said store that he could whip both McMahon and the defendant and bragged about what a good man he was; that he then turned to a keg in said store upon which there was lying a pistol, and that thereupon the defendant Maxwell picked up the pistol and told him to stand back, at the same time firing said pistol at Finnon inflicting wounds from which he died; that at the time of the difficulty, Finnon was under the influence of whisky, McMahon was drinking and the defendant had been drinking. It was further shown by the evidence that the house where the killing occurred contained two rooms, the larger room being used by the defendant Maxwell as a store and the smaller room used by him as a sleeping room. The evidence for the state further tended to show that after the defendant shot the deceased, he left the store and was arrested next day by the sheriff of the county, Robert Vance between Blocton and Centreville, the shooting having occurred at a small town a short distance from Blocton.

The evidence for the defendant tended to show that on the morning of the killing, after the deceased, McMahon and the defendant had been boxing, the defendant proposed to close up the store and go to town and walked back to a keg where his pistol was lying and picked it up; that thereupon Finnon walked up to the defendant and cursed him, and demanded that he give him the pistol, telling him that if he did not, he would "cut his heart out"; that Finnon then ran his hand in his inside coat pocket, where the defendant had seen him put a large dirk before the boxing began, and that while Finnon was so reaching in his pocket, the defendant fired and killed him; that the deceased was drinking at the time; and there was evidence introduced which showed that the deceased was a dangerous, blood-thirsty man when he was drinking. The defendant introduced further evidence tending to show that the deceased had made a number of threats to kill the defendant, all of which had been communicated to the defendant before the killing; that about 15 minutes before the difficulty which resulted in the killing, the deceased was seen with a large dirk in his hand, and that he said that he was going to kill the defendant, and then put the dirk in his inside pocket. It was further shown that the house where the shooting occurred was occupied by the defendant, who used a large room for the store and the small room for his sleeping apartment.

During the examination of Robert Vance as a witness for the state and after he had testified that he was the sheriff of Bibb county, and had arrested the defendant the day after the killing, and that upon arresting him he had taken a pistol from the defendant, which pistol he identified as being the one offered in evidence, the solicitor then asked said witness: "Where he got the pistol from?" The defendant objected to this question, because it called for illegal, irrelevant and incompetent evidence. The court overruled the objection, and the defendant duly excepted. The witness then answered that he got the pistol from the defendant's inside coat pocket.

M. B Sims was introduced as witness for the defendant, and during his examination he testified that the house in which the shooting occurred "was used as a dwelling house and grocery." The solicitor then asked the following question: "What kind of business was the defendant doing in that house?" The defendant objected to this question upon the ground that it called for immaterial, irrelevant and illegal evidence. The court overruled the objection, and the defendant duly excepted. The witness then answered: "That the defendant was selling cigars, beer and whisky." The defendant moved to exclude this answer upon the ground that it was immaterial, irrelevant and illegal evidence, and duly excepted to the court's overruling his motion. This witness further testified that he was in the house at the time of the shooting and that Maxwell was behind the counter just before the shooting. Thereupon the witness was asked what Maxwell was doing behind the counter. The defendant objected to this question, upon the ground that it called for immaterial, irrelevant and illegal evidence. The court overruled the objection, and the defendant duly excepted. The witness answered that Maxwell was putting out glasses and bottles of beer. The defendant moved to exclude this evidence upon the same grounds as were interposed to the question, and duly excepted to the court's overruling his motion. The solicitor then asked said witness "if the parties were paying for the beer and whisky." The defendant objected to this question, upon the same grounds, and duly excepted to the court's overruling his objection. Upon the witness answering that they did pay for it, the defendant moved to exclude said answer, and duly excepted to the court's overruling said motion. The solicitor then asked the witness the following question: "Did you see the defendant sell any beer and whisky the Sunday morning of the killing?" The defendant objected to this question, upon the ground that it called for irrelevant, immaterial and illegal evidence. The court overruled the objection, and the defendant duly excepted. Upon the witness answering that he did see the defendant sell beer on the Sunday morning of the killing, the defendant moved to exclude the answer upon the same grounds, and duly excepted to the court's overruling the motion.

During the examination of C. W. Cummings as a witness, and after he had testified that he saw Maxwell at his house the morning Finnon was killed, the solicitor asked said witness the following question: "Did you buy anything from Maxwell that Sunday?" The defendant objected to this question, because it called for immaterial, incompetent and illegal evidence, and because defendant was not on trial for violating the prohibition law or the Sunday law. The court overruled the objection, and the defendant duly excepted. Upon the witness testifying that he "bought a pint of whisky from Maxwell on that Sunday morning," the defendant moved to exclude said answer, upon the same grounds, and duly excepted to the court overruling said motion.

During the examination of Monroe George, the solicitor asked him "if he saw any one buy any whisky the morning of the difficulty?" The defendant objected...