Moulton v. State, 4 Div. 863. [*]

CourtAlabama Court of Appeals
Writing for the CourtFOSTER, J.
Citation98 So. 709,19 Ala.App. 446
Docket Number4 Div. 863. [*]
Decision Date28 August 1923

Rehearing Denied Oct. 30, 1923.

Appeal from Circuit Court, Covington County; Arthur B. Foster Judge.

D Moulton, alias Dee Moulton, and others were jointly indicted for murder in the first degree. On his separate trial the named defendant was convicted of murder in the second degree and he appeals. Affirmed.

W. W. Sanders, of Elba, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.


The indictment charged murder in the first degree. The defendant was convicted of murder in the second degree. Pleas of not guilty and not guilty by reason of insanity were interposed.

On a Sunday in July, 1922, a crowd was assembled at Friendship Church in Covington county for an all day singing. The deceased, Otis Kendrick, his father and family, the defendant, several of his brothers, two brothers-in-law, and others were present.

The evidence on behalf of the state tended to show that the deceased reached the church about 2 o'clock in the afternoon; that, when deceased started up the church steps, the defendant took him by the arm in an angry manner, and the deceased, breaking away, went into the church with a young lady and remained inside until the singing was concluded. During this time the defendant and his brothers-in-law, Levi Maloy and Robert Blair, standing outside several steps from the door of the church, shook their fists and made grimaces at the deceased, and defendant made the threat that he was going to kill somebody that day.

The deceased left the church and with Will Cooper got in a buggy and started along the road to his home. The defendant and Levi Maloy and Robert Blair went hastily to a buggy and hurriedly hitched a mule to it, and drove rapidly up the road the deceased was traveling. Another buggy with brothers of defendant was following immediately behind defendant's buggy. This road did not lead in the direction of their home.

The father of deceased, with some members of his family, drove, in an automobile along the same road going to his home. When the defendant overtook deceased, defendant jumped from his buggy, went to the rear of deceased's buggy, cut the deceased in the back of the neck with a knife; a struggle ensued in which deceased was pulled from the buggy and a general fight followed in which defendant, his brothers, his brothers-in-law, on the one side, and deceased and his father, on the other side, engaged. During the fight in the road several of the participants were cut; several shots were fired. There was a wire fence on each side of the road, and the deceased went over the wire fence into a pasture, sat down on a log and reloaded is pistol. Howard Moulton, a brother of defendant, the first to get over the fence while going toward deceased, was shot and killed by deceased, defendant and Blair followed deceased into the pasture and were shot by him. The deceased finally reached his father's car and was carried to the house of a neighbor and later to a hospital. Deceased was cut in the abdomen and several places on the body and died from the wounds about 12 days thereafter.

The defendant insisted that he cut the deceased in defense of his own life; and, upon his plea of not guilty by reason of insanity, introduced evidence that deceased had seduced a sister of defendant, and had afterwards refused to marry her.

There are 43 assignments of error. The excellent briefs of counsel for the defendant and for the state have greatly facilitated the determination of the questions reserved which appear in a voluminous record.

The court properly overruled the objection of the defendant to the question asked Mrs. Cauley, "How far behind Otis Kendrick was the defendant in the buggy following him? Your best judgment?" The question sought to elicit testimony as to the distance the defendant was from the deceased, as is clearly shown by the answer "about 100 to 150 yards." The testimony was so intimately connected in time and place with the fatal difficulty that it constituted a part of the res gestæ and was admissible. 1 Mayfield's Digest, p. 772, § 1; Nelson v. State, 130 Ala. 83, 30 So. 728; Hall v. State, 130 Ala. 46, 30 So. 422. It was not objectionable as calling for the opinion of the witness.

The court did not err in permitting the state to examine Tom Cauley. The rule was invoked and the witnesses were required to leave the courtroom and remain out of hearing of the trial until called. This witness violated the rule by remaining in the courtroom. Where all witnesses have been ordered under the rule, and one witness remains in court, and listens to the evidence, the court has discretion to allow him to testify or not, and its ruling is not reviewable. Thorn et al. v. Kemp et al., 98 Ala. 417, 13 So. 749.

When a witness disobeys an order excluding him from the courtroom during the examination of witnesses, the better practice, where there has been no misconduct of the party calling him, is to admit his testimony, and punish him for contempt. Bell v. State, 44 Ala. 393. It is discretionary with the trial court to permit a witness placed under the rule, but who violates it, to testify. Sanders v. State, 105 Ala. 8, 16 So. 935; Hall v. State, 137 Ala. 47, 34 So. 680; Wilson v. State, 52 Ala. 299.

The witness for the state, Tom Cauley, was asked by defendant's counsel on cross-examination, if he had not taken considerable interest in this case against these boys, and stated that he had not, but that he was a good fried of them. Proof by the state that the witness' son married the defendant's, Dee Moulton's, sister was harmless.

The record does not show that the witness Smothers answered the question objected to by the defendant's counsel as follows: "He had you to come to the jail to see him, didn't he?" The bill of exceptions shows that after objection was interposed to the question and overruled by the court, "continuing, the witness testified as follows: I have been seeing Dee ever since I have been living over there." It is clear that this answer was not prejudicial to the defendant. No motion was made to exclude it. The defendant may have been satisfied with it. No question is presented for review.

Where no motion was made to rule out the answer, it will be presumed that the party objecting to a question was satisfied with the answer, and was not harmed by the action of the court in overruling his objection to the question. Empire Clothing Co. v. Hammons, 17 Ala. App. 60, 81 So. 838; Hines v. Laurendine, 17 Ala. App. 350, 84 So. 780; Miller v. State, 16 Ala. App. 3, 74 So. 840; Russell v. Bush, 196 Ala. 309, 71 So. 397.

The court did not err in allowing the solicitor to ask the witness Grimes, "What he saw with reference to the trouble?" The question called for part of the res gestæ of the fatal difficulty. There was no motion to exclude the answer, hence no question is presented for review.

It was competent for the state's counsel to ask the witness Grimes if he heard Mr. Robert Blair say anything to Kendrick. Objection was interposed on the ground that it was not in rebuttal to anything brought out on direct examination. It was entirely discretionary with the court to allow the question on redirect examination. The acceptance or rejection of evidence not strictly in rebuttal is within the sound discretion of the trial court. Horton v. Sou. R. R. Co., 161 Ala. 107, 49 So. 423. The testimony was admissible as part of the res gestæ. Jones v. State, 17 Ala. App. 394, 85 So. 830; Walling v. State, 15 Ala. App. 275, 73 So. 216.

It was competent for the state to show by the witness McCord that the defendant said at the church the evening of the difficulty that he was going to kill somebody that day. Threats generally not naming deceased may be admissible. Myers v. State, 62 Ala. 599; Ford v. State, 71 Ala. 385; Jones v. State, 76 Ala. 8.

The defendant cannot complain that state's counsel asked the witness McCord if he didn't see Dee Moulton, down there at the lemonade stand, whet his knife, the witness having answered the question in the negative. The answer was beneficial to the defendant. Pellum v. State, 89 Ala. 28, 8 So. 83.

The court did not err in allowing the state's counsel to ask the witness King if, after he reached the place of the difficulty and after the difficulty was over, he saw Harlan Moulton give the defendant Dee Moulton anything. The witness answered that he saw him give defendant a gun and that it was the deceased's (Kendrick's) pistol. The defendant cannot complain, as this testimony was beneficial to him, as tending to show that deceased had a pistol at the time of the difficulty. Pellum v. State, supra.

A general objection was interposed to the question propounded by the state's counsel to Dunk Graham as follows: "Did you hear any one of the Moultons say anything as you walked up there?" (to the scene of the difficulty). The evidence was not patently and palpably illegal or irrelevant, and a general objection presents no question for review.

Under circuit court rule 33 (2 Code 1907, p. 1527) requiring specific grounds of objection to testimony, the appellate court will not review the admission of evidence not manifestly illegal and irrelevant, and incapable of being rendered admissible in connection with other evidence. Adams Hardware Co. v. Wimbish, 201 Ala. 547, 78 So. 901; McKinley Music Co. v. Lewis, 17 Ala. App. 370, 84 So. 858.

There was no merit in the objection to the testimony of the witness, Will Cooper, that: "By us looking back, our mule got out against the fence post." The witness continuing to testify said "We got our buggy wheel behind a post, and they were right on us then,...

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    • 19 de setembro de 2019 all that transpired at the time of the difficulty and everything leading up to and explanatory of the tragedy." Moulton v. State, 19 Ala. App. 446, 450, 98Page 86 So. 709, cert. denied, 210 Ala. 656, 98 So. 715 (1923). Testimony is admissible if it "tend(s) to prove the surrounding fac......
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