Olive v. State

• Decision Date: 19 December 1911
• Citation: 57 So. 66,2 Ala.App. 77
• Parties: OLIVE v. STATE.
• Court: Alabama Court of Appeals

57 So. 66

2 Ala.App. 77

OLIVE v. STATE.

Court of Appeals of Alabama

December 19, 1911

Appeal from Circuit Court, Fayette County; Bernard Harwood, Judge.

Elmer Olive was convicted of manslaughter in the first degree, and he appeals.Reversed and remanded.

Daniel Collier and R. H. Scrivner, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

In this case the evidence was such that the defendant had the right to introduce evidence of threats made by the deceased against his life.The court permitted the defendant to prove by two or three witnesses that they heard, on the day of the homicide, the deceased make threats against the life of the defendant.One of these witnesses testified that he saw the deceased a few hours before the homicide, and heard him say: "I want to find that damned son of a bitch, Elmer Olive.I am going to kill the damned son of a bitch to night."Another of these witnesses testified that he saw the deceased on the night of the homicide (the homicide seems to have occurred about 8 o'clock that night), and that the deceased "asked me if I had seen anything of Elmer Olive.I told him that I had not.He said that he was looking for him, and that he was going to kill him that night, or get killed."Thereupon the defendant offered to prove by a witness that on the night of the homicide, and shortly before the fatal difficulty, and near the place where it occurred, the deceased said: "I am a God-damned black snake.I killed one man over in Mississippi and I am going to kill another tonight, or get killed"--that deceased did not say what man he intended to kill, but that in this same conversation the deceased asked the witness where the defendant was, saying that he was looking for him.The court refused to allow this evidence to go before the jury, the defendant excepted, and this action of the court is before us for review.

The above testimony, which the court refused to allow to go before the jury, was not merely corroborative of other evidence which the court permitted to go to the jury, but was independent evidence of a distinct threat about which no witness had testified, or was permitted by the court to testify.The court, as we understand the record, refused to allow the defendant to make the above proof, because the deceased, if he made the threat as claimed, did not name the defendant as the party whom he intended to kill.

In cases like the present, threats of the deceased, to be admissible, must have direct reference to the defendant, or must be made under such circumstances as to be reasonably capable of being construed as referring to the defendant.If they are mere general threats, made under such circumstances or at such a time, that they cannot be reasonably construed as being made against the defendant, they are not admissible.Knight v. State,160 Ala. 58, 49 So. 764.

"Threats to kill or injure some one not definitely designated especially when made shortly...