Powell v. State

• Decision Date: 02 May 1929
• Docket Number: 6 Div. 233.
• Citation: 123 So. 34,219 Ala. 557
• Parties: POWELL v. STATE.
• Court: Alabama Supreme Court

123 So. 34

219 Ala. 557

POWELL v. STATE.

6 Div. 233.

Supreme Court of Alabama

May 2, 1929

As Modified on Denial of Rehearing June 13, 1929.

Appeal from Circuit Court, Cullman County; Paul Speake, Judge.

Mode Powell was convicted of murder in the second degree, and he appeals. Affirmed.

F. E St. John and A. A. Griffith, both of Cullman, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

SAYRE J.

Appellant was convicted of murder in the second degree.

There is no need to discuss in detail the intimate facts of the homicide. The evidence very clearly warranted the verdict. The only question demanding specific treatment arises out of the following situation, to state the case in brief: The evidence for the state went to show that defendant, armed with a Winchester rifle, had gone to the place where deceased lived with his father, and, after killing the father, had killed deceased without excuse or justification. Defendant's theory of the case was that he had killed the father in self-defense and that during that operation one of the shots intended for the father had accidentally killed the son, for the killing of whom he had been indicted and was on trial. The question of guilt vel non was one for jury decision.

To show motive, malice, the state was allowed to put in evidence the complaint in a case in which deceased had brought suit against defendant for debauching his (deceased's) wife. That suit was still pending. The state was further allowed to adduce evidence going to show that during the absence of deceased in Ohio defendant had frequently visited the wife of deceased and on such occasions had slept with the wife or his young sister, according to his choice of the moment, and that, upon one such visit, he had taken with him a friend with whom he directed the young sister to spend the night while he slept with the wife of deceased. Defendant objected to this evidence as it was offered, and his exceptions are now urged for consideration by this court as cause for reversal.

Commander v. State, 60 Ala. 1, seems to furnish the mainstay of the argument for a reversal. Commander was on trial for murder. In that case the state proved that defendant had been informed that deceased had employed an attorney to bring suit against his (defendant's) brother-in-law for some land, in which it seems defendant's wife also claimed an interest, and that a few days before the killing defendant had said that if any one were to sue him so he would kill him. Defendant then offered in evidence a deed and collateral facts to show that deceased had no title to the land. This court, by Brickell, C.J., held that the fact of anticipated litigation between the deceased and the accused, or of litigation in which the accused felt an interest, connected with his declaration that he would kill any one who would sue him under like circumstances, was admissible as bearing on the question of the relation of the parties and the state of the feelings of the accused towards the deceased, but, said the court, "the merits of the litigation were not material. The right may have been against the deceased, but this would not change the fact that the relation of the parties was hostile"-and held that evidence touching the merits of the controversy concerning the land was properly excluded because its admission would have indefinitely multiplied the issues before the jury.

But in Gassenheimer v. State, 52 Ala. 313, where the defendant was indicted for receiving stolen property, Brickell, C.J., speaking for the court, held that, while evidence of one distinct offense is generally inadmissible on the trial of another, it may be resorted to in some cases, for example, among others, where it is necessary or proper to prove a motive.

In Marler v. State, 68 Ala. 580, it was held that "The record of the divorce proceedings, pending between defe...