Peters v. State, 1 Div. 78.

CourtSupreme Court of Alabama
Writing for the CourtBROWN, Justice.
Citation200 So. 404,240 Ala. 531
Decision Date13 February 1941
Docket Number1 Div. 78.

Appeal from Circuit Court, Mobile County; D. H. Edington, Judge.

J. M (or James Marshall) Peters, alias James (or Jimmie) Peterson was convicted of murder in the first degree, and he appeals.

Reversed and remanded.

D. R Coley, Jr., of Mobile, for appellant.

Thos S. Lawson, Atty. Gen., and Prime F. Osborn, Asst. Atty. Gen., for the State.

BROWN Justice.

The appellant was indicted for murder in the circuit court of Mobile County, the indictment charging that he "unlawfully, and with malice aforethought, killed Mittie Peters, alias Mittie Whitehurst by shooting her with a pistol."

On his trial he pleaded "not guilty" and "not guilty by reason of insanity." The trial resulted in a verdict of murder in the first degree fixing the punishment at death.

The deceased was formerly the defendant's wife from whom he was divorced in a proceeding which he procured to be filed in her name. To quote from the brief in his behalf: "Shortly before the killing he had employed an attorney to secure for him a divorce from his wife, the deceased, on the ground of adultery. His Attorney advised him that after talking to the deceased, that the deceased would contest the divorce on the grounds of adultery and that if he, the defendant, would authorize him to do so he would file the divorce in the name of the deceased and against the defendant, and would secure a divorce more readily, and that he authorized this to be done, and it was done."

The evidence is without dispute that the decree of divorce was granted Saturday, May 6, 1939, and on the same date, after the divorce was granted, the defendant married another woman, and on the Monday following the defendant shot deceased several times with a pistol, inflicting mortal wounds causing instant death.

The evidence offered by the State goes to show that the defendant armed himself with a pistol loaded in every chamber, carrying extra ammunition in his pocket, went to the "Union Tavern" located on Royal and Adams Streets, in the City of Mobile, operated by one of deceased's brothers, where she lived and worked, and where her mother, Minnie Whitehurst, also lived, and there waited until deceased drove up in an automobile, when defendant pulled the pistol and shot and wounded Minnie Whitehurst, and then turned on Mittie Whitehurst, who was not armed, pursued her up the street, shot her down, and stood over her and shot her in the head. Previous to the arrival of Mittie Whitehurst on the scene, as the undisputed evidence shows, the conversation between defendant and Minnie Whitehurst was perfectly friendly. Immediately on the arrival of the automobile in which Mittie, her brother Ectrick and Ethel Pinkerton came to the "Union Tavern" a wordy altercation between defendant and Minnie Whitehurst ensued, in which Minnie Whitehurst applied to defendant vile epithets and in which he applied to her the same character of vile epithets.

The defendant's theory of the circumstances leading to the killing, as illustrated by his testimony, is, to quote from brief filed in his behalf:

"On the afternoon of Monday, the day on which the killing took place, the deceased and Ectrick Whitehurst came to where he (the defendant) was at Royal and Government Streets. Ectrick Whitehurst came into the restaurant where he was and called him and asked him to come out and talk to his sister. The deceased asked him to return to her a pistol which had been her property and which the defendant had pawned, and he agreed to get it and to take it to her at her mother's place. He did get it and he and George McInnis, who is charged with him in the case, went to the Union Tavern. When they reached there the deceased was not present and he waited for some time, during which time he engaged in conversation with Minnie Whitehurst, the mother of the deceased. There is no conflict but that during this time he had in his possession the deceased's pistol, and that during this time the conversation was more or less without difficulty. After he had been there for some few minutes the deceased drove up in an automobile with her brother and the girl Ethel Pinkerton.
"* * * the defendant testified that at this moment Minnie Whitehurst cursed him, using vile epithets and struck at him with a rubber hose, the end of which was plugged with wood making an effective billy, and at the same time one of the sons, Louis Whitehurst, charged at him and struck him. He drew his gun and as he did so the deceased ran between him and Minnie Whitehurst, her mother, and was struck by the bullet. She then ran around the corner on Royal Street where she died. The defendant struck Minnie Whitehurst but did not kill her."

The defendant in the confession made at police headquarters immediately after the killing stated, among other things:

"When I went there I carried a pistol concealed about my person. It had six cartridges in the chamber of the gun and I also carried some extra cartridges. I do not know whether I had six extra cartridges or more. I really did not intend to harm my former wife but it was my intent to kill her mother after she started to cuss me. I shot at Mrs. Whitehurst three or four times and but do not know how many times I hit her. I was about six or seven feet from Mrs. Minnie Whitehurst when I was shooting at her. Mittie Peters was on the right hand side of her mother and when I started to shoot she got in front of her mother and that must to have been when I shot. I really intended to kill Minnie Whitehurst and shot at her heart. I do not know how many times I shot at them when they were together. I don't think that Mittie Peters or Mrs. Minnie Whitehurst had anything in their hands at the time I was shooting at them. Louis Whitehurst, after the shooting hit me on the head with a piece of iron so far as I can remember, or something heavy. After this shooting I walked down the street about 40 or 50 feet and I saw that my gun was unloaded so I reloaded it. I put five or six cartridges in it. I then went back inside of the place determined to kill all of the rest of them."

The fact that Margaret Waltman, who was not subpoenaed as a witness, had been in the court room and heard some of the witnesses testify, did not justify the court in refusing to allow defendant to examine her as a witness, since it was made to appear that neither the defendant nor his counsel knew that she was an eye witness to a part of the difficulty between defendant and the Whitehursts, and she was not in the court room by procurement of defendant or his counsel. Degg v. State, 150 Ala. 3, 43 So. 484; H. J. Mitchell v. State, 28 Ala.App. 119, 180 So. 119.

This ruling constitutes reversible error. The question at issue before the jury and within their peculiar province was not only the guilt or innocence of the defendant, but if guilty what the punishment should be. The testimony of said proffered witness related to the res gestae of the alleged crime, and we have no way of evaluating the testimony, or adjudging what weight it may have had on the jury.

Many of the rulings of the court complained of relate to evidence which the defendant proposed to introduce to establish a predicate for allowing lay witnesses to testify that in the opinion of such witnesses the defendant was insane. Among other things that the house known as the "Union Tavern" operated by the deceased's brother, where the mother of the deceased lived, was operated as a house of prostitution, and that deceased's mother induced her to absent herself from defendant's home and their baby, and practice prostitution.

That the said Minnie Whitehurst, in connection with the Union Tavern, operated a house of prostitution.

That said Minnie Whitehurst sometime before going to the Union Tavern operated a house of prostitution on Conti Street in the City of Mobile. This evidence was not relevant to the issues in the case, nor was it competent as going to establish a predicate for the opinion testimony of lay witnesses that the defendant was insane.

To qualify such witness to express an opinion that the person, the subject of the inquiry, is insane, it must appear from the testimony of the witness that he has such acquaintance, continuous intimacy with the person as to observe his character and habits, which reasonably enables the witness to form an opinion, and the witness must state the acts, declarations and conduct of such person, tending to show that such person is afflicted with mental distemper. McCurry v. Hooper, 12 Ala. 823, 46 Am.Dec. 280; 14 R.C.L. 617,§ 68; Parrish v. State, 139 Ala. 16, 36 So. 1012; Sorter v. Austen, 221 Ala. 481, 129 So. 51; Bachelor v. State, 216 Ala. 356, 113 So. 67; Howard v. State, 172 Ala. 402, 55 So. 255, 34 L.R.A.,N.S., 990; Queenan v. Oklahoma, 190 U.S. 548, 23 S.Ct. 762, 47 L.Ed. 1175; 23 C.J.S., Criminal Law, pp. 78-80, § 867; 14 R.C.L. 617, § 68.

Proof of acts, conduct, declarations and delinquencies of others, though related to the prisoner and going to show motive for the crime under investigation, or tending to stimulate a desire for revenge, can not be made a predicate for such non-expert opinion.

The acts, declarations and conduct of the accused, constituting a part and within the res gestae of the alleged crime, can not be made the predicate for the opinion of such lay witness. The probative force of such evidence falls within the exclusive province of the jury, to be weighed and considered in connection with all other evidence. Clark v. Fisher, 1 Paige, N.Y., 171, 19 Am.Dec. 402; 14 R.C.L. pp. 601, 602, § 28; Pace v. Louisville & Nashville Railroad Company, 166 Ala. 519, 52 So. 52; Crotwell et al. v. Cowan et al., 236 Ala. 578, 584 184 So. 195...

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