Pope v. State

• Decision Date: 12 May 1910
• Citation: 53 So. 292,168 Ala. 33
• Parties: POPE v. STATE.
• Court: Alabama Supreme Court

53 So. 292

168 Ala. 33

POPE v. STATE.

Supreme Court of Alabama

May 12, 1910

Upon Rehearing, June 30, 1910.

On Rehearing.

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

Ervin Pope was convicted of murder in the first degree, and he appeals. Reversed and remanded upon a rehearing.

Pope was charged with the murder of James McClerkin, whose body was found early on the morning of the 20th, near a public road in Oxford, with head battered and crushed. Bloody stones and sticks were found thereabout. It was proven that McClerkin heard someone robbing his ginhouse of cotton seed during the night, and had gone in pursuit of the robber when he was killed. It appears that Pope owned a farm which was rented to a number of tenants. This farm was about two miles and a half east of the house where Pope lived, and Pope's house was about two miles and a half northeast of McClerkin's mill. Near this mill was a ginhouse in which cotton seed was stored. McClerkin lived in a house which was nearer the gin than the mill. Bradford, a boy, slept in the mill. The state's theory is that on Monday morning Pope was in need of cotton seed for his farm, and planned to steal it from McClerkin's ginhouse. That afternoon he went to the place for the purpose of inducing Alonzo Bradford not to sleep in the mill that night, and then returned home. After dark, he went to his farm for a mule and wagon, drove to the ginhouse, and began to load his wagon with cotton seed. McClerkin was awakened by the noise, and struck a light to dress, by which he frightened Pope away. As soon as he was dressed, McClerkin went in pursuit of the robber, overtook him at Body's house, which was between the ginhouse and where Pope lived, and was there murdered by Pope. Pope then drove home, and burned under his wash pot his overalls, which were stained with McClerkin's blood. Shoes were found in defendant's barn shortly after the killing, which the testimony tended to show bore evidence of bloodstains. About the amount of cotton seed stolen from McClerkin's gin was found a short distance from where McClerkin was murdered, and from the point where the testimony tended to show McClerkin was begging Pope not to kill him.

The following charges were refused to the defendant:

"(8) The court charges the jury that it is their duty to contrast the manner and demeanor of the witnesses for Pope with the manner and demeanor of the state's witnesses and you must apply this test also to the testimony of Pope as the witness for himself.

"(9) The court charges the jury that they have a right in considering the evidence to take into consideration the traits, characteristics, and peculiarities of the white man and the negro man, but outside of that they must not let their verdict be influenced in the slightest degree by the fact that the deceased was a white man and the accused a negro.

"(10) The court charges the jury that this case rests entirely on circumstantial evidence; that it is their duty to carefully and seriously consider every material point in the state's theory; that if any one of them entertains a reasonable doubt as to the existence of any link in the state's chain of evidence, and that link is a necessary one to the remainder of the state's theory, you cannot find the defendant guilty."

"(13) The court charges the jury that they cannot find the defendant guilty simply because they believe beyond a reasonable doubt that Pope needed cotton seed and promised some one to furnish it Tuesday, and that he told Alonzo Bradford not to stay in the mill, and that Body heard the name Ervin called by McClerkin at the time of his death, and that Dodgen tracked hoofprints like those made by Pope's mule to a point close to Pope's house, and that cotton seed was found in Bradford's toolhouse, and that buckles and buttons were found under Pope's barn, and that he addressed Eason as McClerkin; but that even though you believe all these facts beyond a reasonable doubt, in order to convict the defendant, you must further believe beyond a reasonable doubt that these circumstances establish the fact that Ervin Pope killed James McClerkin."

T. C. Sensabaugh and Niel P. Sterne, for appellant.

Alexander M. Garber, Atty. Gen., and Knox, Acker & Blackmon, for the State.

ANDERSON J.

The answer of the witness Williams as to the condition and appearance of the shoes, when he examined them at the coroner's inquest, was responsive to the question asked by the state and to which there was no objection. The defendant, not having objected to the question, could not put the trial court in error for failing to exclude the answer. Downey v. State, 115 Ala. 108, 22 So. 479. Nor must we be understood as holding that the evidence was incompetent had the question been objected to by the defendant. Orr v. State, 117 Ala. 69, 23 So. 696.

There was no error in permitting the state to show the defendant's inquiries and efforts to procure cotton seed the day previous to the homicide, as the state's theory was that the man who killed the deceased was the one who burglarized the building to get cotton seed.

There was no error in not letting the defendant prove by Amos Montgomery what the deputy sheriff Eason said to Robert Smart about telling him a lie and putting him in jail. It does not appear that these remarks applied to Montgomery, or could have influenced his testimony, and it was not reoffered after Smart and Eason had testified. It was not competent when excluded, and, if it became relevant after Eason and Amos Montgomery testified, in order to put the trial court in error, it should have been subsequently offered.

There was no error in permitting the state to show that there was a mill at Oxford and much nearer the defendant than the one in question. The state's theory was that he did not go to the decedent's mill solely to get meal, but to inspect and clear the way to go there that night for cotton seed. And the fact that he could have gotten the meal much nearer his home was a circumstance for the jury to determine whether he went to the mill in question solely to get meal or to inspect conditions and surroundings as well.

There was no error in permitting the witness Dodgen to testify that he found a sack of sorghum seed by the side of the road on College Hill. The burglar had been traced in this direction, and there was proof that the building burglarized contained cotton seed, sorghum seed, and feed. Miss Rachel McClerkin's testimony, page 15 of the record. Nor was there error in permitting Dodgen to testify that he did not know that defendant was suspected of killing the deceased. It was a circumstance to be considered by the jury as to whether or not these were facts to induce or influence the witness in tracing the tracks to near the defendant's house.

The fact that the officer who searched the defendant's premises and found the shoes had no search warrant did not render the evidence inadmissible. Shields v. State, 104 Ala. 35, 16 So. 85, 53 Am. St. Rep. 17; Scott v. State, 113 Ala. 64, 21 So. 425; Bacon v. United States, 97 F. 35, 38 C. C. A. 37; 25 Am. & Eng. Encyc. Law, 154.

We do not think that the deputy sheriff, Rowland, was rendered incompetent to testify because at recess or other times he may have had charge of the jury. We think it would be better where an officer is a witness in the case, such as the present one, that he not be put in charge of the jury, but this fact does not render him incompetent as a witness.

There was no error in permitting the witness Murphy to testify where he got the buckles and buttons. H...