Morell v. State
| Citation | 18 Ala.App. 243,91 So. 501 |
| Decision Date | 30 June 1921 |
| Docket Number | 8 Div. 785. |
| Parties | MORELL ET AL. v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied July 9, 1921.
Appeal from Circuit Court, Lomestone County; O. Kyle, Judge.
Jake and Ed Morell were indicted for an assault and attempt to murder. The latter was convicted as charged, and the former was convicted of assault and battery, and they appealed. Affirmed.
Certiorari denied 91 South 923.
W. R Walker, of Athens, for appellants.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The defendants were charged by indictment with the offense of assault with intent to murder. Upon the trial Ed Morell was convicted of assault with intent to murder. Jake Morell was convicted of an assault and battery. They appeal.
The trial court properly declined to allow the defendants to "go into the particulars of what the school trouble was."
Evidence of threats made against the defendants by third parties not present at the assault, and who took no part therein, was not admissible. State v. Taylor, 126 Mo. 531, 29 S.W. 598; State v. Anderson, 4 Nev. 265.
The statement by Roy Whitt, alleged to have been made as his father went out of the store, was made before the beginning of the difficulty, if at all, and was not a part of the res gestæ. Gandy v. Humphries, 35 Ala. 617; So. Ry v. Reeder, 152 Ala. 227, 44 So. 699, 126 Am. St. Rep 23.
Moreover, the alleged statement was nothing more than Roy Whitt's interpretation of his father's intention. Allen v. State, 111 Ala. 80, 87, 20 So. 490.
On cross-examination, Jake Morell testified that a Mr. Claunch (to whom it is claimed that Badge Whitt made some threats against Jake previous to the shooting) had died since the last trial of the case; that Mr. Claunch was present at the last trial, "but was not examined as a witness; he was in such bad health he got excused."
On redirect, his counsel asked him this question:
On objection by the state, defendants' counsel stated that the purpose of the question was to show that on the former trial the court would not permit inquiries about the threat to be answered. Later, counsel also stated that the purpose was to show why Claunch was not examined as a witness. The court sustained the objection. This ruling was not erroneous. The witness had already stated that Claunch was in bad health and was excused. Moreover, the court had a right to change its mind and to allow evidence of the threats to be introduced on the tria, which it did.
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State v. Goettina, 2302
...free from error, and testimony as to a difficulty between defendant and a third party was also properly excluded." In Morell v. State, 18 Ala.App. 243, 91 So. 501, court stated: "Evidence of threats made against the defendants by third parties not present at the assault, and who took no par......
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Vinson v. State
... ... the evidence of the case the circumstances of the differences ... between the two party groups at 'Louis' Place' ... We entertain the view that the details of this prior ... disagreement, at which appellant was not present and in no ... way participated, are res inter alios. Morell v ... State, 18 Ala.App. 243, 91 So. 501; Carter v ... State, 219 Ala. 670, 123 So. 50; Roper v ... State, 25 Ala.App. 397, 147 So. 201 ... Let it ... be understood we are not here holding that the privilege of ... free and full examination to determine interest, bias, ill ... ...
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