Pope v. State

• Decision Date: 06 February 1913
• Citation: 181 Ala. 19,61 So. 263
• Parties: POPE v. STATE.
• Court: Alabama Supreme Court

61 So. 263

181 Ala. 19

POPE v. STATE.

Supreme Court of Alabama

February 6, 1913

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Ervin Pope was convicted of murder, and appeals. Reversed and remanded.

See also, 168 Ala. 33, 53 So. 292; 57 So. 245.

Thomas J. Harris, of Anniston, and J.T. Roach, of Birmingham, for appellant.

R.C Brickell, Atty. Gen., W.L. Martin, Asst. Atty. Gen., and W.C Tunstall, Jr., and W.P. Acker, both of Anniston, for the State.

SOMERVILLE J.

The appellant has been thrice tried, convicted, and sentenced to death, and the case is now before this court for the third time on appeal. Pope v. State, 168 Ala. 33, 53 So. 292; s.c., 57 So. 245. One James McClurkin heard some one burglarizing his ginhouse during the night. He arose, dressed, and went in pursuit of the burglar, who had driven off in a wagon. He was not seen alive again, but his dead body was found close by the public road along which he had made pursuit, with his head battered and crushed, and the bloody stones and sticks used by the murderer lying close at hand. The murder occurred near the house of one John Body, and the theory of defendant was that Body was the real murderer. On the second appeal, after a very exhaustive consideration of the evidence, which was entirely circumstantial, we concluded that there was some evidence from which the jury might have inferred that Body was the murderer. A very important, if not the weightiest, part of the state's evidence, related to the identification of certain mule tracks leading from the scene of the murder to this defendant's house as the tracks of a mule owned and used by him. One Joe Dodgen, a blacksmith of 15 years' experience, had testified that he had traced these tracks to defendant's house; that these tracks were peculiar, in that those made by the hind feet showed no shoes, a piece of the left foot being broken off the side so that the sand "would oval up in the track," and the right foot leaving the impression of three nails on the earth; that he had examined the feet of a certain mule belonging to defendant and found its front feet shod, and the hind feet bare; and that the left hind foot had a piece broken out of the side, the same side as shown by the track, and the right hind foot had two loose nails in it. The witness also testified that he had examined the feet of John Body's mule, and that they were smooth, not broken on the bottom, and without nails.

There is no material difference between the evidence presented now and on the former trial. On this trial, against defendant's objection that the question called for the conclusion of the witness, the trial court allowed the state to ask the witness Dodgen, "Could the John...