McGuire v. State
| Decision Date | 21 December 1911 |
| Citation | 58 So. 60,3 Ala.App. 40 |
| Parties | MCGUIRE v. STATE. |
| Court | Alabama Court of Appeals |
On Application for Rehearing, February 22, 1912.
On Application for Rehearing.
Appeal from Circuit Court, Tallapoosa County; A. H. Alston, Judge.
Ernest McGuire was convicted of an assault with a weapon, and appeals. Affirmed.
Riddle, Ellis, Riddle & Pruett, for appellant.
R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.
The defendant was tried on an indictment charging an assault with a weapon, the jury returned a verdict of guilty, and placed the fine at $100, and the court imposed an additional punishment of 30 days imprisonment in the county jail.
The exceptions reserved on the trial to the court's ruling on the evidence are without merit. The question propounded to the witness Davis manifestly called for a hearsay self-serving declaration of the defendant, and the court properly sustained an objection to the question, and refused to allow a statement made before the jury as to what defendant expected the answer to be. At most, the matter called for could be no more than an exculpatory declaration of the defendant that was no part of the res gestæ. Williams v. State, 105 Ala. 96, 17 So. 86; Fergeson v. State, 134 Ala. 63, 70, 32 So. 760, 92 Am. St. Rep. 17.
The defendant had been examined as a witness in his own behalf and proof of his general character was admissible. Mitchell v. State, 148 Ala. 618, 42 So. 1014; Ross v. State, 139 Ala. 144, 36 So. 718; Fields v. State, 121 Ala. 16, 25 So. 726; Yarbrough v State, 105 Ala. 43, 16 So. 758; Jones v. State, 96 Ala. 102, 11 So. 399; Byers v. State, 105 Ala. 31, 16 So. 716; Mitchell v. State, 94 Ala. 68, 10 So. 518.
It was not improper to allow the witness McKinnon to testify to the character of the defendant formed or based on an estimate of how he was regarded or the esteem in which he was held by others who knew him. The witness could form an estimate by what he heard others say, without having a personal acquaintance, and that his knowledge of the reputation of defendant was limited to what others had communicated by some expression ("what they said") does not make the question objectionable. Reputation is the estimate in which others hold one, and this can only be made known or communicated by some expression--generally "what they say." There was sufficient evidence to authorize a conviction, and the general charge requested in behalf of defendant was properly refused.
The imposition of an additional punishment by the court of 30 days imprisonment in the county jail was without error. Code 1907, §§ 6306, 7627; Reid v. State, 53 Ala. 402, 25 Am. Rep. 627; McPherson v. State, 54 Ala. 221; Bibb v. State, 84 Ala. 13, 4 So. 275; Taylor v. State, 114 Ala. 20, 21 So. 947; Martin v. State, 125 Ala. 64, 28 So. 92.
No error being shown by the record, the case will be affirmed.
Affirmed.
On Application for Rehearing.
In his application for a rehearing, appellant's counsel directs the attention of the court to the question asked the defendant's witness Davis, to which the court sustained an objection, seeking to prove by the witness what the defendant said in the presence of the witness and his (defendant's) brother, when the brother, Layno McGuire, informed the defendant what the assaulted party, Hardeman, had said in reference to the defendant's coming to see him for the purpose of making friends, and having no hard feelings over a previous difficulty they had engaged in that day. Counsel take the position in the application for a rehearing that this declaration is not a mere self-serving declaration made by the defendant, but that the statement of the defendant made in reply to his brother in the presence of the witness Davis is a declaration shown to have been made at a time just prior to going to the place where Hardeman was and where the difficulty took place, and was explanatory of the object and purpose the defendant had in view in going to that particular place; that the defendant's statement was a declaration accompanying and characterizing the act of his going to the place of the difficulty and formed a part of the res gestæ of the act of going as explanatory thereof.
Conceding that the declaration of the accused was admissible as explanatory of the act of his leaving and going to the place of the difficulty, and...
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