McGuff v. State

Citation248 Ala. 259,27 So.2d 241
Decision Date02 August 1946
Docket Number6 Div. 423.
PartiesMcGUFF v. STATE.
CourtSupreme Court of Alabama

Pennington & Tweedy, of Jasper, for appellant.

Wm. N. McQueen, Atty. Gen., and Jas. T. Hardin Asst. Atty. Gen., for the State.


Appellant was tried in the Circuit Court of Walker County, Alabama, for the offense of murder in the first degree, and upon his conviction of murder in the second degree his punishment was fixed at imprisonment in the penitentiary of Alabama for a period of thirty years, and he has appealed.

It is undisputed that on or about April 14, 1945, the appellant shot and killed one Arthur Russell with a twenty-two Winchester rifle, near the town of Cordova in Walker County Alabama. Events leading up to the fatal shooting are not clearly disclosed by the record. It does appear, however that the fatal difficulty had its inception in and grew out of a dice game. Following the dice game, the appellant and one Lecil Short, apparently the winners, while kneeling in the road, counting money, were confronted by a group consisting of Horace Dodd, Henry Poore and the deceased Arthur Russell. There were charges that crooked dice had been used, and a scuffle or fight ensued. Appellant testifying in his own behalf contended that in this fight he was attacked by the deceased, and that money was forceably taken from him against his will by Russell. The State's testimony tended to show that the fight was between Horace Dodd and Lecil Short, and that following the fight Dodd and Short agreed to forget the matter, and that the group proceed along the road together, and that about this time appellant and deceased became engaged in an argument concerning union affairs and vacation pay at the local mine. Whatever the true facts may be as to the difficulty and its cause, appellant left the group and went to the home of Ruth Carson located near by, and attempted to borrow a gun, telling Miss Carson that he wanted the gun to kill a rabbit. Upon being informed by Miss Carson that she had a gun but no shells, appellant went to the home of Estelle Williams, some two or three hundred yards from the place where Russell was killed, and obtained a twenty-two Winchester rifle, telling Mrs. Williams that he wished to kill a gopher rat. Upon obtaining the rifle appellant returned to the place he had left the group. Poore and Short had gone, and deceased and Dodd were seated alongside the road. The testimony is conflicting concerning what took place immediately preceding the shooting. Dodd's testimony for the State tended to show that as appellant came down the road Russell arose from a sitting position by the side of the road, and that about the time Russell reached an upright or standing position, appellant was thirty or thirty-five steps away from him: that neither said anything, and that appellant shot deceased from that distance. Appellant testified, in substance, that as he approached Dodd and Russell they both arose and that Dodd started to run away, but turned and came back, and that both started toward him; that he twice told Russell to stop, but that he kept coming toward him, and was coming rapidly, and put his hand in his pocket; that he shot deceased when he was about fifteen feet away, and while still advancing toward him with his hand in his pocket.

Deceased was shown to be a man weighing around one hundred and sixty pounds, physically strong, although it was shown that, owing to a prior accident, one arm was not quite as strong as the other. Appellant was shown to be a man weighing between one hundred and thirty and one hundred and thirty-five pounds. His right arm had been amputated about two inches below the elbow years ago. His feet had been badly burned years ago, with some of the toes burned off, and he walked or ran with some difficulty.

The record is replete with exceptions to rulings of the trial court. As the cause must be reversed, we will not give special consideration to each exception in turn, but will consider those vital to a retrial.

The trial court charged on self-defense, but refused all efforts of appellant to introduce evidence of deceased's character for peace and quietude; and to introduce evidence of prior difficulties between appellant and deceased, and of communicated threats by deceased against appellant. The trial court also refused to charge on manslaughter in either decree. And it refused to permit appellant to testify that it was his intent or purpose, in returning to where he left deceased in the road, to talk with deceased about getting his money back, and in the event deceased refused to return it, to arrest deceased for the felony committed in taking it from him by force and against his will.

We think this ruling, and the consequent lack of evidence for the appellant as to such intent or purpose in all probability prompted the other rulings of the trial court mentioned above.

It cannot be questioned that appellant's intent or purpose in returning to the place where he left deceased on the road was a material inquiry. If in truth appellant's money had been taken from him by force and against his will, he, or any other private person, had a lawful right to pursue the thief for the purpose of arresting him, and of recapturing the money so taken. Section 158, Title 15, Code of 1940. And under the circumstances, he is not required to inform the party of his purpose to arrest him, as in ordinary cases. Section 159, Title 15, Code of 1940. And he could, if resisted, repel force with force, and need not give back or retreat. If under such circumstances, the party making resistance is unavoidably killed, the homicide would be justifiable. If appellant's purpose was honestly to make an arrest, he would not for this reason be chargeable with the imputation of having wrongfully brought on the difficulty; but the law would not permit him to resort to the pretense of arrest, as a mere colorable device beneath which to perpetrate crime. Storey v. State, 71 Ala.

329; Gibson v. State, 193 Ala. 12, 69 So. 533.

Appellant's intent or purpose being material, can he state what that intent or purpose was? It must be conceded that a large number of decisions of this Court dealing with this question, hold that a witness may not testify to his own intent or other state of mind, notwithstanding the fact that the witness's intent or other state of mind is material. It is not the law in other jurisdictions that a witness is disqualified to testify to his own intent or other state of mind, when such intent or state of mind is material. Wigmore on Evidence, 3d Ed., §§ 581 and 1966; Jarrell v. Young, Smyth, Field Co., 105 Md. 280, 66 A. 50, 23 L.R.A.,N.S., 367. But it should be distinctly noted that those jurisdictions which permit a witness to testify to his own mental state receive such testimony only when it is material, and if for any reason of substantive law, the witness's mental state is not material the mental state is not provable at all. It is generally held that a witness may not testify as to what his state of mind or actions would have been under a supposition or non-existent state of facts, that is to say, a state of facts different from those which he testified did exist.

The history and development of this rule of exclusion in Alabama deserves some consideration. In Barnett v. Stanton & Pollard, 2 Ala. 181, 182, it was said that a mere assertion of value by a seller is not a warranty, being 'mere matter of opinion, not knowledge.' This case and its successors. Williams v. Cannon, 9 Ala. 348, 350, and Bradford v. Bush, 10 Ala. 386, 390, which had required the jury to determine the question whether the language was a mere assertion or something more, were then taken, in Sledge v. Scott, 56 Ala. 202, 207, as involving this consequence, that on such a matter of opinion no witness, even the purchaser, could speak, and the consequence was reached that a buyer could not testify that 'he relied on the seller's representations as to soundness, and would not have made the purchase but for the representations.' On the same theory, similar evidence was rejected in Baker v. Trotter, 73 Ala. 277, 281. Other early cases supporting the development of the rule of exclusion are: Mobile Life Ins. Co. v. Walker, 1877, 58 Ala. 290; Sternau v. Marx, 1877, 58 Ala. 608; Herring v. Skaggs, 1878, 62 Ala. 180, 34 Am.Rep. 4; Wheless v. Rhodes, 1882, 70 Ala. 419, 420; Burns v. Campbell, 1882, 71 Ala. 271; Brewer v. Watson, 1882, 71 Ala. 299, 46 Am.Rep. 318; Burke v. State, 1882, 71 Ala. 377; Whizenant v. State, 1882, 71 Ala. 383; Baker v. Trotter, 1882, 73 Ala. 277; Wilson v. State, 1883, 73 Ala. 527; McCormick v. Joseph, 1884, 77 Ala. 236; Stewart v. State, 1885, 78 Ala. 436; Brown v. State, 1885, 79 Ala. 51; Alabama Fertilizer Co. v. Reynolds, 1885, 79 Ala. 497.

In Alabama Fertilizer Co. v. Reynolds, supra, the action was on a promissory note, plaintiff's claim of defendant's liability being that defendant held himself out as a partner of another who actually signed the note for the alleged partnership: plaintiff was disallowed to testify that he would not have sold the goods (which were the consideration for the note), except upon the strength of defendant's name. The Court said: 'We do this because such testimony, in its nature is insusceptible of contradiction.'

The cases noted above seem to have developed in Alabama the notion that a witness is disqualified to testify to his own state of mind, even though his state of mind is material. Many of our cases have since followed that rule, but we will not attempt to cite them here. They are collated in Wigmore on Evidence, 3d Ed., § 1966, and note thereto. They are also collated in an article prepared by Judge Russell McElroy Presiding Judge of the Tenth...

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  • Davis v. State, 1 Div. 937
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