Ratliff v. State

• Decision Date: 18 December 1923
• Docket Number: 5 Div. 480.
• Citation: 98 So. 493,19 Ala.App. 505
• Parties: RATLIFF v. STATE.
• Court: Alabama Court of Appeals

98 So. 493

19 Ala.App. 505

RATLIFF v. STATE.

5 Div. 480.

Court of Appeals of Alabama

December 18, 1923

Appeal from Circuit Court, Russell County; J. S. Williams, Judge.

Oscar Ratliff was convicted by murder in the second degree, and appeals. Reversed and remanded.

Frank M. de Graffenried, of Seale, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN P.J.

The defendant was indicted by the grand jury of Russell county at the spring term 1923, for the offense of murder in the first degree.

He was arraigned in open court on April 2, 1923, pleaded not guilty to the charge, and on April 4, 1923, was put upon trial and was convicted of murder in the second degree, his punishment being fixed by the jury at ten years' imprisonment in the penitentiary. Judgment of the court was entered sentencing him to ten years' imprisonment in accordance with the verdict of the jury, from which he appeals to this court.

On the trial of this case in the court below, numerous exceptions were reserved to the rulings of the court upon testimony, and these, together with the exception reserved to the overruling defendant's motion for a new trial, are relied upon to effect a reversal of the judgment. No exception appears to have been reserved to the oral charge of the court, nor does the record disclose that any special written charges were requested by either side.

The evidence, as shown by the bill of exceptions, discloses that Roy Smith, the deceased named in the indictment, was killed on the 22d day of January, 1923. According to the testimony offered for the state, he was killed by defendant in the back yard of one John Ratliff, a brother of the defendant Oscar Ratliff, and with whom he (the defendant) then resided. But according to the evidence offered in behalf of defendant the killing occurred inside the residence of John Ratliff where he (the appellant) lived at the time.

Over the objection and exception of the defendant it appears that the court admitted testimony to the effect that the appellant had had a prior difficulty on the same afternoon witth one Bud Smith, a brother of Roy Smith, the deceased named in the indictment. And it appears from the testimony, thus admitted that at the time of that difficiulty the deceased was in his residence asleep. In said previous difficulty Bud Smith was shot, and thereafter Roy Smith was awakened by a kinsman and informed of the difficulty between the appellant and Bud Smith, his brother, and thereupon Roy Smith, the deceased went upon the premises where the appellant lived and the fatal difficulty between the deceased and the appellant then ensued.

According to the testimony offered in behalf of the state, the deceased went upon the premises where this defendant resided unarmed and alone and was shot by the defendant just as he turned a corner of the house, and while out in the yard. The evidence for the defendant in the court below tended to show that he was inside the home of a kinsman, his brother, with whom he resided, and that the deceased came into the house and made an attack on him with a hammer and that he fired two shots, one to stop the deceased and the other with the intent to kill, the contention of the defendant in the court below being that he acted in self-defense.

Numerous exceptions were reserved to the admission in evidence by the trial court of the details of the former difficulty between Bud Smith, the brother of the deceased, and the defendant.

The rulings of the court in allowing the state, over the objection of defendant, to prove a former difficulty between the defendant and a third party was error. Clemmons v. State, 18 Ala. App. 650, 94 So. 245; Fonville v. State, 91 Ala. 38, 8 So. 688; Redden v. State, 7 Ala. App. 33, 60 So. 992; Gary v. State, 18 Ala. App. 367, 92 So. 533; Jones v. State, 181 Ala. 63, 78, 61 So. 434; Sims v. State, 146 Ala. 109, 118, 41 So. 413. It is an elementary rule of evidence that the details of such difficulty were inadmissible. Jones v. State, 17 Ala. App. 394, 85 So. 830.

In connection with the above rulings we note from the record that the court undertook to cure the error by stating (after the conclusion of the opening argument by the state) "that all testimony which has to do with the details of any former difficulty or previous trouble as between the defendant and the brother of the deceased, is now expressly excluded from the consideration of the jury." We are of the opinion that this effort, to right the wrong which had been done, was abortive. Cassemus v. State, 16 Ala. App. 61, 75 So. 267. The discussion by this court in the case of Davis v. State, 18 Ala. App. 482, 93 So. 269, as to this character of procedure is in point; we need not discuss it further here, except to add that the testimony was of a highly prejudicial nature (Dennison v. State, 17 Ala. App. 674, 88 So. 211) and was permitted to remain with the jury throughout the trial of the case and until the first speech for the prosecution by the special solicitor had been concluded. By this ruling of the court, at the period of the trial stated, counsel for appellant were of course deprived of the opportunity of replying to argument of the state's counsel predicated upon the illegal evidence before the jury at the time which argument by the state was permitted to remain before the jury.

The next insistence of error relates to the rulings of the court in admitting the dying declarations of deceased. It has been definitely settled that dying declarations made under a sense of impending death, are admissible as evidence, where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the declarations. In other words, evidence of this character constitutes an exception to the rule rejecting hearsay evidence. Such declarations are those made by the victim of a homicide, referring to the material facts which concern the cause and circumstances of the killing, and which are uttered under a fixed belief that death is pending and is certain to follow immediately, or in a very short time, without an opportunity for retraction and in the absence of all hopes of...