Patterson v. State

• Decision Date: 04 June 1908
• Parties: PATTERSON v. STATE.
• Court: Alabama Supreme Court

47 So. 52

156 Ala. 62

PATTERSON v. STATE.

Supreme Court of Alabama

June 4, 1908

Appeal from Circuit Court, Lawrence County; D. W. Speake, Judge.

Steve Patterson was convicted of murder in the second degree, and appeals. Reversed and remanded.

Defendant was indicted for killing Giles Davis. For a former report of this case, see 146 Ala. 39, 41 So. 157. The evidence of the witness Young, embraced in brackets as noticed in the opinion, is as follows: After testifying as to the character of Giles Davis, witness said: "And have had dealings with many bad men, and that Davis was the most dangerous man I ever knew." The evidence of Irwin was offered by way of a written showing, and is as follows: That witness had a conversation with Mary Davis, the widow of Giles Davis during the past winter or fall, and that in such conversation the said Mary Davis told witness that she and her daughter Lizzie Davis, were at their home on Burkett's Island at the time Giles Davis was killed; that they were in the house at the time, and heard the shot, but that they could not see any of the parties, or hear anything but the shots; that it was impossible to see the place where Davis was killed from the house on account of physical obstructions; that the house was in a low place, and that the place where Davis was killed was in another low place, with high grounds and a shell mound between them, besides bushes, trees, and large corn, and that neither she nor Lizzie Davis saw the shooting, or heard anything except the pistol shots; and that witness swore falsely upon the other trial of the case through fear of Tom Warren, a brother of Giles Davis, who told her what to swear and told her he would kill her if she did not do it. The other facts sufficiently appear in the opinion of the court.

C. M Sherrod, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DENSON J.

The defendant was tried in the circuit court of Lawrence county upon an indictment charging murder, in Code form, and was convicted of murder in the second degree. From this judgment the appeal is prosecuted by the defendant.

The mistake made in the second initial of juror Taliaferro's name furnished no ground for quashing the special venire, and the court cannot be put in error for overruling the motion. Cr. Code 1896, § 5007, and cases cited under that section.

The witness Lizzie Davis, after testifying fully in respect to the circumstances under which the homicide was committed testified that she was present on a formal trial of the case, but did not go on the stand. It was competent to allow the solicitor to explain why the witness was not examined on the former trial, by showing by her that she did not arrive until the argument in the cause had been concluded.

Witness George Brooks' evidence was, in effect, that on account of the topography of the locality the place where deceased was killed could not have been seen by a person at the house of the deceased. It developed on cross-examination that the only knowledge the witness had of the place where the killing occurred was derived through information from one McCary, who showed him the locality. It did not appear that McCary was present at the commission of the homicide, or that he knew that the place pointed out to the witness was the scene of it. In this state of the evidence, Brooks' information as to the place must be regarded as having been obtained through hearsay evidence; and the court properly granted the solicitor's motion to exclude his evidence "as to where Davis was killed."

It has been frequently decided by this court that, while the evidence of a former difficulty between the deceased and the defendant is, under certain circumstances, competent evidence for a defendant, yet the details of such difficulty are not competent as evidence. Hence the court did not err in excluding that portion of the evidence of the witness John Lang embraced in the brackets in the bill of exceptions. Jones' Case, 116 Ala. 468, 23 So. 135; Gafford's Case, 122 Ala. 54, 25 So. 10; Longmire's Case, 130 Ala. 66, 30 So. 413; Sanford's Case, 143 Ala. 78, 39 So. 370; Patterson's Case, 146 Ala. 39, 41 So. 157.

Nor did the court err in excluding that part of the evidence of witness Young, embraced in brackets in the bill of exceptions. He was competent to testify that Davis bore a bad character, but it was not legitimate for him to institute a comparison between the characters of other men he had known and the character of Davis.

The evidence of D. W. Irwin, offered by defendant, is so patently illegal as to require no further consideration.

It is not permissible for a defendant, as a witness in his own behalf on the examination in chief, to testify as to his secret and uncommunicated purpose or intention. Smith's Case, 145 Ala. 17, 40 So. 957. But on cross-examination of the defendant it is permissible to inquire as to his motives for particular acts testified to by him. Linnehan's Case, 120 Ala. 293, 25 So. 6; Hurst's Case, 133 Ala. 96, 31 So. 933. These principles show that the court committed no error in declining to allow the defendant to be asked, on the direct examination, "Why did you not retreat?" and in allowing him to be asked on the cross, "What did you carry your pistol with you for?" The other questions propounded to the defendant by his counsel called for conclusions, and objections thereto were properly sustained.

The court in its oral charge instructed the jury in this language: "I charge you, gentleman of the jury, that malice in law does not necessarily mean hate or ill will, but is defined as...