Montgomery v. State

• Decision Date: 30 June 1911
• Citation: 2 Ala.App. 25,56 So. 92
• Parties: MONTGOMERY v. STATE.
• Court: Alabama Court of Appeals

56 So. 92

2 Ala.App. 25

MONTGOMERY v. STATE.

Court of Appeals of Alabama

June 30, 1911

Appeal from Circuit Court, Lawrence County; D. W. Speake, Judge.

Wess Montgomery was convicted of manslaughter in the first degree and he appeals. Affirmed.

Wert & Lynne and Jackson & Deloney, for appellant.

R. C. Brickell, Atty. Gen., and T. H. Seay Asst. Atty. Gen., for the State.

PELHAM, J.

The defendant was indicted for murder, but, having been previously tried on the charge and convicted of murder in the second degree, the defendant's plea of former acquittal of murder in the first degree was confessed on the present trial. There was a conviction for manslaughter in the first degree, and the defendant appeals.

While the record contains more than 50 separate exceptions to the testimony reserved on the trial, a careful examination of each of them fails to disclose a reversible error available to the defendant in the court's rulings on the evidence. Many of these exceptions are reserved to questions similar to those that have been passed upon time and again, and require no special discussion, as they clearly fall within general principles of law upholding the correctness of the trial court's rulings that have been announced by the Supreme Court so often as to require no repetition. Some of them are the same questions passed upon adversely to appellant when the case was before the Supreme Court on a former appeal. Montgomery v. State, 160 Ala. 7, 49 So. 902.

The questions asked the witness Prewitt by the state, with reference to what the deceased was doing and saying when the defendant came into the house where the trouble started that terminated in the killing, were relevant and proper, as tending to prove who was the aggressor in the difficulty. There was evidence that the defendant had told deceased to stop cursing in the presence of a woman (a daughter-in-law) who was present in the house, and that he accompanied the admonition with a threat as to the consequences if it did not cease. This was the commencement of the difficulty as shown by the evidence and what the deceased was saying and doing at the time was clearly admissible to show who was at fault in bringing on the difficulty.

Whether or not deceased, or any other person, was connected with the manufacture or making of whisky that was drunk by the parties was entirely irrelevant, and the court very properly sustained objections to all questions asked the witness Prewitt on cross-examination seeking to elicit such facts.

There was no error committed in allowing the arresting officer to testify as to what he found on the defendant's person when he searched him. The arrest was made several days after the commission of the offense, on a train, after the defendant had been looked for at his home and in the neighborhood and not found. The evidence was for the purpose of showing the defendant had the address of a party in Texas on his person, as a circumstance tending to prove flight, or that defendant contemplated leaving the state. This paper containing the address was afterwards admitted in evidence without objection, upon admission of the defendant. Nor was it error to allow the witness to testify that the defendant had a considerable sum of money on his person, as a circumstance connected with his arrest on the train, to show flight. Any conduct of defendant tending to show flight as a consciousness of guilt, though weak and inconclusive, is admissible. The weight of the evidence is a question for the jury. Clarke v. State, 78 Ala. 474, 56 Am. Rep. 45; Bowles v. State, 58 Ala. 335.

The defendant having asked about, or brought out part of, a conversation between the witness Prewitt and one Wilkerson and one Young, the state had a perfect right to bring out all that was said in those conversations. Ray v. State, 147 Ala. 5, 41 So. 579; Williams v. State, 103 Ala. 33, 15 So. 662; Wall v. State, 56 So. 57, and authorities there cited.

The questions asked the witness Prewit as to whether he considered another person truthful, and what he meant by certain statements as to telling the truth, and why he wanted to do a certain thing, called for evidence that was not admissible, in that it called for the witness' motives, uncommunicated intention, or state of mind. Dent v. State, 105 Ala. 14, 17 So. 94; Stewart v. State, 78 Ala. 436; Smith v. State, 145 Ala. 17, 40 So. 957; Barnewell v. Stephens, 142 Ala. 609, 38 So. 662. The character of Madison was not relevant in any particular to the issues in the case, and the questions seeking to prove it were correctly excluded.

The general character of the deceased was not admissible, and the court allowed all questions going to prove the character of the deceased for peace and quietude was bad, and that he was a quarrelsome, turbulent, dangerous, or bloodthirsty man, and these elements of the deceased's character were alone permissible to be proved.

The threats testified to by the witness Wilkerson were competent; they were neither too remote nor too general. What weight, if any, they were given was for the jury to determine in weighing them in connection with all the other evidence.

As to whether or not the defendant's witness Van Coffee was introduced and examined as a state's witness on the former trial was immaterial, and proof of the fact before the jury in no way was calculated to prove or disprove any issue before them. The witness stated that he was examined as a witness on the former trial, and it was not material by whom he was offered; nor was it competent to make proof of the fact, as it would only be for the purpose of prejudicing the jury. Neilson's Case, 40 So. 221; ^[1] Glass v. State, 147 Ala. 50, 41 So. 727.

There was no error in the court's sustaining the solicitor's objection to having the witness Van Coffee prompted and suggested to on direct examination by reading to him at length the extended statement of his testimony on the former trial.

The solicitor's objections to the questions asked this witness, calling for a narration of self-serving declarations upon the part of the defendant, were properly sustained; all the declarations properly constituting a part of the res gestæ were permitted to be answered. There was no error in the court's refusing to allow this witness, or the defendant, to testify that he told the witness he wanted him to inform the neighbors of the fact of the killing. It could shed no light on the issues, and had no tendency to prove the guilt or innocence of the defendant; the killing of the deceased by the defendant being uncontroverted. That the defendant would want the neighbors to know would have no bearing on whether or not the killing was in self-defense or maliciously done, and the only issue in the case was whether or not the defendant acted in self-defense in shooting the deceased. Nor could the statement be deemed a part of the res gestæ. Lunsford v. State, 56 So. 89; Gassenheimer v. State, 52 Ala. 313; Berney v. State, 69 Ala. 233; McCormack v. State, 102 Ala. 161, 15 So. 438.

It was proper to allow the solicitor to ask the defendant's witnesses with reference to what they testified on the former trial, either for the purpose of showing contradiction or to test their recollection.

The solicitor's objections to the questions of the defendant to his witness Herbert Montgomery as to where the whisky came from the parties were drinking, who operated or owned the still where the whisky was made, or whether witness or the Prewitts were concerned in making whisky, or running an illicit still, were all properly sustained, as the questions were all clearly improper in calling for immaterial testimony.

Specific acts of the deceased in the past to prove his character for being a dangerous or turbulent man were inadmissible. Franklin v. State, 29 Ala. 14.

The uncommunicated plans the defendant may have made with his brother in reference to coming to court were not permissible as explanatory of flight, or for any other reason. Stewart v. State, 78 Ala. 436.

The court did not allow the state to exceed its right of legitimate cross-examination in asking the defendant about his pistol, and what he did with it and his motive for doing so, etc., the night of the shooting and when the sheriff was looking for him. The defendant had testified as to his actions at these times, and it was permissible to allow the state, under the latitude allowed on cross-examination, to go into these matters for the purpose of showing contradictory statements or actions, or showing the defendant's actions were inconsistent with the statements made on direct examination. Linehan v. State, 120 Ala. 293, 25 So. 6; Birmingham Ry. Co. v. Mason, 144 Ala. 387, 39 So. 590.

There was no error committed in permitting the state's questions to the defendant's witness Tucker as contradicting the witness Van Coffee, or for the purpose of laying a predicate to impeach the witness. The bill of exceptions...