Newsom v. State

• Decision Date: 30 May 1916
• Docket Number: 8 Div. 396
• Citation: 15 Ala.App. 43,72 So. 579
• Parties: NEWSOM v. STATE.
• Court: Alabama Court of Appeals

72 So. 579

15 Ala.App. 43

NEWSOM v. STATE.

8 Div. 396

Court of Appeals of Alabama

May 30, 1916

Rehearing Denied Aug. 1, 1916

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

T.J Newsom was convicted of murder in the second degree, and he appeals. Affirmed.

Most of the exceptions to rulings on the evidence sufficiently appear from the opinion. Mrs. Tinsdale testified that she was there a minute or two just after the shooting, and stayed there two or three minutes, and that there were three or four persons up under the trees; that she saw Mr. Newsom as they carried him in on the porch, and thought it was him that was shot and heard some one say: "There is the scoundrel that done it; don't let him get away." That the voice was down under the trees.

The following charges were given at the request of the state:

(2) If the defendant, while at the time of the killing, in collusion with another to take the life of the deceased, and kill deceased in consequence thereof, then defendant cannot set up self-defense in this case.

(6) Appears from the opinion.

The following charges were requested by defendant:

(26) Sufficiently appears.

(29) If defendant shot under a bona fide belief that his life was in danger, and had, under all the circumstances, a reasonable cause to believe that he was in imminent danger at the moment the shot was fired, then defendant cannot be convicted.

Wert &amp Lynne and O. Kyle, all of Decatur, for appellant.

W.L. Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

BROWN J.

The defendant killed C.Ed. Hatchett by shooting him with a pistol and was convicted and sentenced to a term of ten years in the penitentiary for murder in the second degree. At the time of the homicide the defendant was a merchant on Church street in the city of Decatur and a justice of the peace, and the deceased, although a man of mature years, was engaged in the business of a "newsboy," delivering the evening newspaper to its several subscribers in the vicinity of the defendant's residence. The homicide was committed after deceased had received the evening paper for delivery and just after dark, and the place of the killing was immediately in front of the residence of W.A. Brown on Church street and only a short distance from the home of the defendant, who lived on the adjoining property. Previous to this time on one or more occasions the deceased had been arraigned and tried before the defendant as a justice of the peace for vagrancy, and in one instance was committed to jail by the defendant; and evidence was offered showing that the deceased had made threats of violence against the defendant, and tending to show some activity on deceased's part to procure evidence to impeach the defendant and oust him from office.

The prosecution advances two theories to justify the defendant's conviction and sentence. One is that the defendant conspired with others to do the deceased corporal hurt and, in pursuance of this unlawful conspiracy, accomplished his death; and the other is that the defendant armed himself with a pistol, waited at a picture show until the deceased in his usual round in delivering the evening paper would be in the locality of the defendant's home, there met or overtook him, provoked or voluntarily engaged him in a personal rencounter in which the deceased struck the defendant in the face, and, taking advantage of this situation and his surroundings, shot him to death. On the other hand, the defendant contends that the deceased waylaid and attacked him in the dark, murderously assaulting him, and, without knowing who his assailant was, but believing that he was bent on robbery, after deceased had thrown and pinned him to the ground, without drawing his weapon from his overcoat pocket, he fired two shots into the body of the deceased, one of which embedded itself in the spine, causing instant paralysis of the lower extremities, and totally disabling the deceased to further assault him; that, the homicide having been committed under these circumstances, it was justifiable and he should not have been convicted.

2. Trimble, a witness for the state, whose residence was on the lot adjoining W.A. Brown's residence, testified that he was in his house when he heard the shots, and just before he heard the shots he "heard a noise as if somebody was going by fussing," and almost immediately after this he heard two shots, and after the shots he heard a cry of distress; that he immediately started to the place of the shooting, and on reaching his front gate saw some one standing on the sidewalk in front of Brown's residence, some 60 feet away, and on reaching the place found a man standing on the sidewalk with a pistol in his hand. Hatchett's body was then prostrate on the ground, with his feet touching the sidewalk. The witness further testified:

"Before I saw the man with the pistol I heard a voice saying, 'What must I do with him?' which seemed to be from where I afterward found the man with his pistol standing, and the other party further on down replied, 'I don't care what you do with the s____n of a b____h. You can kill him as far as I am concerned.' The party that ask, 'What must I do with him,' was the party with the pistol, and the party who gave the answer was further west on down the sidewalk where I saw Newsom. I then went on down where the dead man was at. It was then when the conversation occurred between me and the man with the pistol."

The witness, on redirect examination, after he had detailed the conversation between witness and the man with the pistol, testified:

"My best judgment is that it was Newsom's voice that said, 'I don't care what you do with him,' " etc.

The conversation between the witness and the man with the pistol occurred immediately on witness reaching the scene of the killing, and is stated by the witness thus:

"I ask him what he was doing with the pistol, and he said, 'I am guarding this man,' and I said 'I think he needs a doctor instead of a guard.' "

The defendant objected to the question calling out the several statements above italicized and moved to exclude them; the objections and motions being overruled, now insists that these several statements were erroneously received in evidence. The admission of the first statement of the witness objected to was justified by the exception to the general rule thus stated in Mayberry v. State, 107 Ala. 67, 18 So. 219:

"Where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind"

--and followed in Welch v. State, 156 Ala. 112, 46 So. 856. The presence of the man with a pistol standing over the prostrate body when the witness reached the scene of the homicide tended to show that this man had committed the offense, or was there aiding and abetting the guilty party, and the conversation between this man and the voice which the witness finally stated in his best judgment was that of the defendant, who was then leaving the scene of the homicide, was so intimately related in time and occasion to the major fact to fall within the res gestae rule, and shed light and give character to the acts and conduct of the parties. White v. State, 71 So. 452; Stevens v. State, 138 Ala. 80, 35 So. 122.

Furthermore, at the time this testimony was admitted, the relation of "the man with the pistol" to the transaction was not shown other than by the facts detailed by this witness, and on the face of the transaction as it then appeared this conversation was between the defendant and his coadjutor in crime, and, aside from the res gestae rule, was admissible against the defendant then on trial. Morris v. State, 146 Ala. 66, 41 So. 274.

If the conversation between the witness Trimble and the man with the pistol be treated independently of the other facts and circumstances detailed by the witness, it had no tendency to connect the defendant with the offense and in no way prejudiced him. Brindley v. State, 69 So. 536. But when considered in connection with the other facts and circumstances, on its face it has some tendency to show preconcert.

"When by prearrangement or on the spur of the moment two or more persons enter upon a common enterprise or adventure, and a criminal offense is contemplated, then each is a conspirator and if the offense is carried out, each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the active perpetrator in the commission of the offense is a guilty participant, and, in the eye of the law, is equally guilty with the one who does the act. Such community of purpose or conspiracy need not be proven by positive testimony. It rarely is so proved. The jury are to determine whether it exists and the extent of it from the conduct of the parties and all the testimony in the case." Morris v. State, supra. "It may be inferred from the circumstances attendant upon the doing of the act, and from the conduct of the parties subsequent to its commission." Brindley v. State, supra; Underhill, Criminal Evidence, §§ 492-494.

The fact that this circumstance could be and may have been so explained as to destroy its probative force does not argue against its admissibility. The probative force of the evidence, in the light of any explanatory fact, was for the jury.

The declaration testified to by Mrs. Tinsdale appears to have been made immediately after the shooting and before the witness Trimble reached the scene of the difficulty. The defendant had not yet gotten away from the place; he was then being assisted away by his wife and son. The circumstances here...