Morris v. State

• Decision Date: 14 June 1932
• Docket Number: 6 Div. 257.
• Citation: 25 Ala.App. 175,142 So. 685
• Parties: MORRIS ET AL. v. STATE.
• Court: Alabama Court of Appeals

142 So. 685

25 Ala.App. 175

MORRIS ET AL. v. STATE.

6 Div. 257.

Court of Appeals of Alabama

June 14, 1932

Appeal from Circuit Court, Winston County, Double Springs Division Norman Gunn, Special Judge.

Will Morris and another were convicted of murder in the second degree, and they appeal.

Reversed and cause remanded.

See also, 24 Ala. App. 273, 134 So. 456.

J. Foy Guin, of Russellville, for appellants.

Thos. E. Knight, Jr., Atty. Gen., and Pennington & Tweedy, of Jasper, for the State.

SAMFORD J.

The indictment charged murder in the first degree. When the defendants were arraigned for trial, the court entered an order to summon a special venire from the county of Winston, but limited in said order the drawing of the veniremen to the jury box containing names of qualified jurors in the Double Springs division of Winston county. The defendants objected to being tried by a jury so drawn, and moved to quash the venire on the ground that the order did not include jurors from the entire county. By act of the Legislature 1919 (Loc. Acts 1919, p. 164), there is created a division of the circuit court of Winston county to be held at Haleyville in said county, the jurisdiction of which division is limited to causes arising in certain precincts named. Section 8 of said local act (page 165) provides for the drawing of grand and petit juries to serve in the Haleyville division from those certain precincts named and composing the division. While the jurisdiction of the circuit court at Double Springs is not specifically divested of jurisdiction over causes arising in the Haleyville division, a district for drawing grand and petit jurors to serve the Haleyville division of the court, section 8633 of the Code of 1923 exempts jurors in that district from service in the Double Springs branch of the court. This section does not affect the operation of the local law above referred to, but does limit the court at Double Springs to qualified jurors outside the Haleyville district and in Winston county. The objection of defendants to being tried by a jury so selected was properly overruled, as was also the motion to quash the venire.

One of the veniremen, upon being examined by the court as required by section 8659 of the Code of 1923, answered that he had a fixed opinion as to the guilt or innocence of the defendants that would bias his verdict. The court on this answer very properly and promptly discharged him as a juror. After this, the defendants' counsel sought to interrogate this venireman further, touching his qualifications, claiming this right under section 8662 of the Code of 1923. This section has no application in this case. This venireman had already been discharged from further service by the court, and further examination could not have changed this order.

The defendants moved for a continuance on account of the absence of M. G. Harris, a witness duly summoned, and offered a showing for this witness. The state declined to admit the showing, the court overruled defendants' motion for a continuance, and ordered an attachment for the witness. This is a matter discretionary with the court, and will not be reviewed, except in case of abuse. As a complete answer to the claim that the court abused his discretion, it appears from the record that on the hearing of the motion for a new trial the witness Harris was present and offered to testify, but defendants objected, and the court sustained the objection, although, if Harris had testified to the statement set out in the showing made for him as a basis for a continuance, such testimony would have been beneficial to defendants, whereas it was made known to the court that the testimony of Harris would not be the same as the statement contained in the showing. We do not say that this shows that defendants' counsel was trifling with the court, but we do say it is a complete demonstration of the fact that the court's discretion was wisely exercised.

The clothes of the dead man were properly admitted in evidence. The case of Boyette v. State, 215 Ala. 472, 110 So. 812, has been differentiated and explained in later decisions. Patterson v. State, 23 Ala. App. 428, 126 So. 420; Enzor v. State, 24 Ala. App. 346, 135 So. 595.

The witness Kilgore, having testified as to his experience and observations with reference to dead bodies, was qualified to testify that in his opinion Lea had been dead six hours or more when he examined the body. The case of Anderson v. State, 19 Ala. App. 606, 99 So. 778, is not in point. The testimony in that case was as to the cause of death. In the White Case, 136 Ala. 58, 34 So. 177, the witness was not shown to have had a special knowledge of the fact about which he was called to testify.

The testimony offered by defendant as to what Jack McDonald said to certain persons the day after the homicide and not in the presence of defendants or either of them was not a part of the res gestæ, and was properly excluded as being hearsay. A person accused of crime may show his own innocence by proof of the guilt of another. However, the evidence of such guilt must relate to the res gestæ, and not to the declarations or conduct of the party on whom it is attempted to cast suspicion, subsequent to, and having no immediate connection with, the crime. 1 Best on Ev. Par. 91; Levison v. State, 54 Ala. 520.

The witness Bruner was asked by the solicitor this question: "Do you know whether or not in February of this year Luke Lea owned a gun or not?" Objection to this question was overruled and exception reserved. One of the pertinent questions involved in this case was the ownership of the gun (pistol) found on the running board of Lea's car at the scene of the homicide. The question called for legal evidence. The answer was: "He did not, sir." This answer was not responsive to the question, and no motion was made to exclude. There is, therefore no ruling here to review.

The witness Jasper Parker having testified that he saw the Luke Lea car on the night of and just prior to the homicide, and that he made certain observations regarding it, it was competent for him to testify that the next morning a car was pointed out to him in Jasper as the Luke Lea car, and that the car he saw the night before was in his judgment the same car. This was relevant as tending to identify the car.

After the witness Parker had testified on cross-examination that the Luke Lea car "was a big car *** it was the biggest car; it was a medium size car. It was bigger than a Ford. It was a medium size car; it aint one of the biggest, I said it was a medium size car," defendants' counsel asked this question: "Do you remember saying on the other trial it was a big car?" Objection to this question was sustained and exception reserved. Even if this witness had said on another trial that the Luke Lea car was a big car, such answer would not have tended to impeach his testimony. The word "big" is a descriptive adjective relative in its application here to a Ford coupé about which the witness was testifying, and such testimony was not in such conflict with the testimony then being given to be impeaching.

The...