Montgomery v. State

Decision Date13 April 1920
Docket Number8 Div. 745 [*]
Citation86 So. 132,17 Ala.App. 469
CourtAlabama Court of Appeals

On Rehearing, June 8, 1920

Appeal from Circuit Court, Morgan County; F. Loyd Tate, Judge.

Will Montgomery was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Samford J., dissenting in part.

Sample & Kilpatrick, of Hartsells, for appellant.

J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.


The defendant was indicted for the offense of murder in the first degree. He was tried and convicted of murder in the second degree, and from the judgment of conviction he appeals.

There are several rulings of the court insisted upon as error. There was no error in sustaining the objections of the state to questions propounded to witness Foreman, on cross-examination. Counsel for defendant insists that the evidence was competent for the purpose of establishing the violent, turbulent, and bloodthirsty character of deceased. The testimony sought to be adduced was that deceased, at the time of his death, was a fugitive from justice, and that on some former occasion, while the witness, who is the sheriff was trying to arrest deceased, he attempted to shoot witness with a gun. Proof of specific acts or of isolated facts cannot be shown in order to establish character, and for this reason the objections were properly sustained. Jackson v. State, 177 Ala. 12, 59 So. 171; Donald v. State, 12 Ala.App. 61, 67 So. 624; Franklin v. State, 29 Ala. 14. Moreover, at this juncture there was no evidence of self-defense, and in the absence of some evidence showing or tending to show that the defendant acted in self-defense, it is not permissible to offer proof of the violent, turbulent, and bloodthirsty character of deceased. Smith v. State, 197 Ala. 193, 72 So. 316.

Over the objection of defendant, witness Lem Turney was permitted to testify to the confessions made by defendant a short time after the killing. A proper predicate had been laid for the introduction of this testimony, and the court did not err in overruling the general objections of the defendant to the questions, and for similar reasons there was no error in refusing to exclude this testimony from the jury. Wilson v. State, 191 Ala. 7, 67 So. 1010.

Witness Lem Turney, on cross-examination and in response to questions propounded to him by defendant's counsel, testified to part of a conversation between witness, defendant, and one Ward, which conversation occurred at the house of defendant a short time after the killing of deceased. It was therefore permissible for the state, on redirect examination of this witness, to inquire as to the whole of this same conversation. The court permitted this to be done, and overruled the several objections interposed by defendant's counsel. The court did not err in its rulings in this connection. Maddox v. State, 159 Ala. 53, 48 So. 689.

The motion of defendant to exclude all of the testimony offered by the state because of a variance between the allegations contained in the indictment and the proof, in that the defendant is charged with having killed "Red" Nelson, when the proof shows that the name of deceased was William Phillips, or Webster Nelson, was properly overruled, as the testimony of all the witnesses referred to the deceased as "Red" Nelson, and the undisputed evidence showed that the deceased was commonly known and always called by the name of "Red" Nelson, as contained in the indictment. Jones v. State, 181 Ala. 63, 61 So. 434.

The court did not err in allowing testimony to show that, in an hour or an hour and a half after the killing of deceased by defendant, he, together with two others, carried the body a distance of a half or three-fourths of a mile on a litter, constructed of gunny sacks or tow sacks and two sticks, and threw the body over a bluff into a sink in the mountains, and thereby concealed it. This testimony was not competent as a part of the res gestae, but was competent upon the theory that the acts, declarations, and conduct of accused against interest are always admissible. It was competent, also, for the reason that affirmative proof had been offered of the commission by the defendant of the offense charged, and the tendency of this evidence was to show a desire or disposition upon the part of the accused to conceal the crime.

Any act proving, or tending to prove, an effort or a desire on the part of the defendant to obliterate evidence of a crime, is always relevant, for from such facts, if unexplained, the jury may justly apprehend his mental condition, and may infer that they indicate a consciousness of guilt. Underhill, Crim.Ev. p. 563, § 323. Thus it appears that such testimony was also admissible upon the theory of facts showing a consciousness of guilt. Evidence upon this theory never depends on its contemporaneousness, connection with the crime that is charged, or upon its being a part of the res gestae. Facts showing or tending to show a consciousness of guilt are always permissible, though not connected with the res gestae of the offense. Any statement or conduct of a person indicating a consciousness of guilt, where at the time or thereafter he is charged with or suspected of the crime, is admissible as a circumstance against him on his trial. Evidence of circumstances, which are part of a person's behavior subsequent to an event which it is alleged or suspected he is connected with or implicated in, are relevant, if the circumstances are such as would be natural and usual; the connection or implication having been shown to exist. Under a rule of evidence of this character testimony will be received to prove or disprove facts of circumstances which indicate a consciousness of guilt on the part of the accused, existing after the crime with which he is charged was committed.

The conduct of the defendant, and general demeanor, his language, oral or written, and his mental and physical condition, attitude, and relations toward the crime, or his actions in the presence of those who discovered the crime, or who are engaged in discovering the perpetrator, are relevant. Jones v. State, 181 Ala. 63, 61 So. 434. Time between the commission of the crime and the incriminating or accusatory actions relied on to connect the accused therewith is often an important element. In other words, the circumstances of the conduct of the accused must not be so remote in time or extend over so long a period as to create a strong probability that they are the outcome of other motives than a consciousness of guilt. Underhill on Criminal Ev. p. 213, § 116; Smith v. State, 183 Ala. 10, 62 So. 864. In the case at bar, the above exception cannot, of course, apply. The circumstances of the defendant, together with his helpers, having hidden the body, were too closely connected with the commission of the offense to make the exception applicable here.

The defendant having testified that he had aided in hiding the body of deceased, after he had killed deceased, it was permissible for the state, on cross-examination, to ask the motive which prompted him in hiding the body. 23 L.R.A.(N.S.) 371, note (d); Williams v. State, 123 Ala. 39, 26 So. 521; Patterson v. State, 156 Ala. 62, 47 So. 52; Hurst v. State, 133 Ala. 96, 31 So. 933; Hays v. State, 155 Ala. 40, 46 So. 471; Richter v. State, 156 Ala. 127, 47 So. 163; Barber v. State, 11 Ala.App. 118, 65 So. 842; Linnehan v. State, 120 Ala. 293, 25 So. 6; Thomas v. State, 150 Ala. 31, 43 So. 371; Carwile v. State, 148 Ala. 576, 39 So. 222.

The cases of Ellis v. State, 105 Ala. 72, 17 So. 119, Smith v. State, 145 Ala. 17, 40 So. 957, Dean v. State, 100 Ala. 102, 14 So. 762, and Whizenant v. State, 71 Ala. 383, seem opposed to this view; but the expression in the Ellis Case was dictum, in Smith's Case the headnote is not sustained by the opinion, and the opinion in the Whizenant Case seems to have been based upon the common-law rule, before defendants were allowed to testify.

The court charged the jury:

"If you believe from the evidence that any witness has sworn falsely, you have the power and it is your privilege to disregard all the testimony of that witness."

In this there was error. Before a jury is authorized to disregard the testimony upon the principle of "falsus in uno, falsus in omnibus," it must appear that the testimony so given was willfully false and that it related to material matters; in other words, that the witness or witnesses have willfully sworn falsely, and that such willfully false swearing was in relation to a material matter in controversy. Smith v. State, 16 Ala.App. 79, 75 So. 627; Hamilton v. State, 147 Ala. 110, 41 So. 940; Prater v. State, 107 Ala. 26, 18 So. 238; McClellan v. State, 117 Ala. 140, 23 So. 653; Seawright v. State, 160 Ala. 33, 49 So. 325; Carpenter v. State, 193 Ala. 51, 69 So. 531; Keef v. State, 7 Ala.App. 15, 60 So. 963; Gillespie v. Hester, 160 Ala. 444, 49 So. 580.

For the error pointed out, the judgment of conviction is reversed, and the cause remanded.

Reversed and remanded.

On Rehearing.

It is conceded, in fact it cannot be gainsaid, that there was manifest error in the oral charge of the court--error calculated to seriously and injuriously affect the substantial rights of the defendant. See cases cited in original opinion. It has also been held that "the harmful results arising from giving an erroneous charge are not cured by a correct statement of the law." Smith v. State, 15 Ala.App. 662, 74 So. 755.

It is now provided by statute (Acts 1915, p. 815) that the oral charge of the court must either be in writing or be taken down by the court reporter as it is delivered to the jury and the clerk, in making the transcript or record for an...

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