Pitts v. State

Decision Date10 May 1904
Citation37 So. 101,140 Ala. 70
PartiesPITTS v. STATE.
CourtAlabama Supreme Court

Appeal from Circuit Court, Houston County; John P. Hubbard, Judge.

Tom Pitts was convicted of murder in the second degree, and appeals. Affirmed.

On the trial of the case it was shown that the difficulty which resulted in the homicide occurred on a public road; that the defendant and his brother were riding together in a wagon and immediately behind them Wesley Cooley, the deceased, was riding in his wagon; that they had so proceeded for quite a distance; that as they neared a swamp the defendant, who had his shotgun with him, got out of the wagon, and that a few minutes thereafter there was a difficulty between the defendant and the deceased, which resulted in both of them being shot. The evidence for the state tended to show that there had been a previous difficulty between the defendant and the deceased on the Thursday night preceding the difficulty, which occurred on Saturday afternoon; that as the defendant got out of the wagon he turned to the deceased and, cursing him, said that that was about as good a time as any to settle their differences, and leveled his gun upon him; that immediately the deceased raised his pistol; that the defendant fired first, and the deceased fired two shots from his pistol at the defendant; that the deceased, in trying to dodge the shot of the defendant, leaned over in his wagon, and the load took effect in the deceased's leg that his leg was subsequently amputated, and that the deceased died on the Friday after the shooting. The evidence for the defendant tended to show that he stated to his brother, as they approached the swamp, that he was going to get out and hunt squirrels; that he got out of the wagon, and started into the swamp; that he had taken only a few steps when he heard the deceased say, with an oath, that this was a good time to settle their difficulty; that upon turning around the defendant saw the deceased trying to shoot him with his pistol, and that thereupon he fired upon the deceased; but that the deceased fired first, his pistol ball striking the defendant in the leg below the knee. There was also evidence introduced on the part of the state tending to show that the defendant had made threats against the deceased, while there was evidence on the part of the defendant tending to show that the deceased had made threats against the defendant.

Mrs Cooley, the wife of the deceased, testified that on the Thursday night before the killing the defendant came to the house, and the deceased and defendant had a difficulty; that in this difficulty the defendant cursed the deceased. The defendant moved the court to exclude this testimony of the witness on the ground that it called for irrelevant and illegal evidence, and for the details of a former difficulty. The bill of exceptions does not show that there was any ruling by the court upon this motion. The solicitor for the state then asked the witness Mrs. Cooley the following question: "Did the defendant, during the difficulty make any threats against your husband?" The defendant objected to this question upon the ground that it called for illegal evidence, and for the details of a former difficulty. The court overruled the objection, and the defendant duly excepted. Upon the witness replying that the defendant said he "was going home to get his gun, and would come back and get him [her husband]," the defendant moved to exclude the answer upon the same grounds, and duly excepted to the court overruling the objection.

Dr. Chalker was introduced as a witness for the state, and testified that he was a practicing physician, and that he had attended the deceased after he was shot, and that Dr. Williams also treated the deceased; that he and Dr. Williams amputated the leg. This witness testified that he could not say what caused the death of the deceased. He further testified that two or three days before the deceased died he suffered a great deal from very severe pains in his bowels, and complained a great deal of such pains.

Alpheus Collins, a witness for the state, testified that he was with the deceased at various times after he was shot, and almost continually from Sunday up to the time of his death; that, although he was not a physician, he helped dress his wound; whereupon the state asked the witness how the wound looked after the leg was amputated. The defendant objected to this question, upon the ground that it called for illegal testimony, and that the witness was not shown to be an expert or a physician. The court overruled the objection, and the defendant duly excepted. Upon the witness answering that the wound and leg "looked dark" for an inch or two from where it was amputated, the defendant moved the court to exclude the answer upon the same grounds, and duly excepted to the court overruling the motion.

Mrs. McAllister, who was the mother-in-law of the deceased, testified that she was with the deceased continuously after he was shot up to the time of his death, and that she had helped dress the wound. Upon being asked how the leg looked after it was amputated, the defendant interposed the same objection as to the above-named question; and, upon her answering that it looked dark for an inch or more above where it was amputated, the defendant moved to exclude the answer upon the same grounds upon which the motion was made to exclude the testimony of the witness Collins. The court separately overruled the objection and motion, and to each of these rulings the defendant separately excepted.

Several of the witnesses for the state testified that after the deceased was shot, and after his leg was amputated, he repeatedly said that he was going to die; that the friends who were in the room with him at different times were trying to encourage him, and persuade him that he would get well, but that he persistently said that he was going to die; that, after having so stated several times that he was going to die, he made a statement as to how the difficulty between him and the defendant occurred.

J. M. Rogers, a witness for the state, who had testified to the deceased having repeatedly said that he was going to die, was asked "if Cooley, before he died, made any statement to him as to the difficulty between him and the defendant." The defendant objected to this question upon the ground that it called for illegal and irrelevant testimony, and that a sufficient predicate had not been made to admit the statement as Cooley's dying declaration. The court overruled the objection, and the defendant duly excepted. The witness answered that on Thursday before Cooley died on Friday he made a statement, and requested the witness to reduce it to writing, which the witness said he did, and produced a paper which he said contained the statement of Cooley. The defendant moved to exclude this answer of the witness and the question upon the same ground, and duly excepted to the court overruling his motion. The solicitor read the paper or statement against the objection and exception of the defendant, but said statement so read as the dying declaration of the deceased is not set forth in the bill of exceptions.

The other facts pertaining to the rulings of the trial court reviewed on the present appeal are sufficiently set forth in the opinion.

In his argument to the jury, defendant's counsel made the following statement: "That the experience and observation of mankind had been that the dying declarations of a man were very unreliable, and that the jury should be very cautious in convicting on such testimony, and that perhaps more innocent men had been convicted by this character of evidence than upon any other kind." The solicitor objected to this portion of the argument of defendant's counsel, and moved to exclude it from the jury. The court sustained the objection, and instructed the jury that they would not consider the language of the defendant's counsel, and to this ruling the defendant duly excepted. Thereupon the defendant's counsel continued his argument, and used the following language: "The experience and observation of the jury has probably convinced them that the dying declarations of a man are of a very unreliable species of testimony, and that more innocent men had been convicted on this character of testimony than on any other kind." The solicitor again objected to this language, and moved to exclude it from the consideration of the jury. The court granted the motion, and to this ruling the defendant duly excepted. The defendant's counsel, during his further argument to the jury, said: "That the state had offered four witnesses, to wit, Mrs. Cooley, Mrs. McAllister, Jonah McAllister, and J. M. Rogers, who testified, but that he had only had two of them, to wit, Jonah McAllister and J. M. Rogers, to tell the jury what Cooley had said as to the details or particulars of the difficulty; and that the testimony of Rogers and Jonah McAllister as to what Cooley said took place during the difficulty were in material conflict; and that, if he had asked Mrs. Cooley and Mrs. McAllister what Cooley said to them as to how the difficulty took place, their testimony would doubtless have been in conflict with that of J. M. Rogers and Jonah McAllister."

The court, at the request of the state, gave to the jury...

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25 cases
  • Burks v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 20, 1991
    ...may look to such contradictory statements in order to determine what credence they will give to that testimony. See Pitts v. State, 140 Ala. 70, 83, 37 So. 101, 105 (1904). " 'Inconsistencies and contradictions in the testimony of a witness do not make it inherently improbable.' Arnold v. S......
  • Bolden v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 30, 1989
    ...for a ruling is a prerequisite to preserving for appeal the issue of the timeliness of the judge's action. See Pitts v. State, 140 Ala. 70, 80, 37 So. 101, 104 (1904). "In the absence of a ruling, a request for a ruling, or an objection to the court's failure to rule, we have nothing to rev......
  • Phillips v. State
    • United States
    • Alabama Supreme Court
    • October 10, 1946
    ... ... There ... is no requirement of law that the description of wounds on ... the body of a deceased person must be given by an expert ... witness. Rowe v. State, 243 Ala. 618, 11 So.2d 749; ... Hill v. State, 146 Ala. 51, 41 So. 621; Pitts v ... State, 140 Ala. 70, 37 So. 101. The trial court did not ... err in permitting the expert and non-expert witnesses to ... testify as to the appearance and location of the wounds ... Kilpatrick v. State, 213 Ala. 358, 104 So. 656; Hill ... v. State, supra; Terry v. State, 118 Ala ... ...
  • Cox v. State
    • United States
    • Alabama Court of Appeals
    • April 17, 1923
    ... ... so separate in point of time and place from the killing, is ... not to be regarded as part of that transaction. At the time ... of the declaration the difficulty was a thing of the past, ... the defendant had left the scene, and the incident was ... closed. It was not of the res gestæ. Pitts v. State, ... 140 Ala. 70, 37 So. 101; Nelson v. State, 130 Ala ... 83, 30 So. 728; Harkness v. State, 129 Ala. 71, 30 ... So. 73; Hill v. State, 156 Ala. 3, 46 So. 864; ... Hickman v. State, 12 Ala. App. 22, 67 So. 775. The ... declaration proved was a confession by defendant that he did ... ...
  • Request a trial to view additional results

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