Roberson v. State, 2 Div. 82

• Decision Date: 21 January 1937
• Docket Number: 2 Div. 82
• Citation: 172 So. 250,233 Ala. 442
• Parties: ROBERSON v. STATE.
• Court: Alabama Supreme Court

172 So. 250

233 Ala. 442

ROBERSON v. STATE.

2 Div. 82

Supreme Court of Alabama

January 21, 1937

Appeal from Circuit Court, Perry County; John Miller, Judge.

Eddie Roberson, alias Bo Roberson, was convicted of murder in the second degree, and he appeals.

Affirmed.

A.W Stewart, of Marion, for appellant.

A.A Carmichael, Atty. Gen., for the State.

BOULDIN Justice.

Eddie Roberson killed Willie James Jefferson by cutting him with a knife.

There were no eyewitnesses to the fatal rencounter, except defendant, who took the stand in his own behalf.

Will Holliday, first witness for the State, testified to seeing defendant at the house of Mose Roberson soon after the killing; that he was wounded and bloody. On cross-examination of this witness the record recites the following:

"When I saw defendant at Mose Roberson's house he had blood on his head. He had a wound on his head. I didn't examine it, but could see the blood coming from it. There were two places, one right here and one right here (in the head). The blood came down on his shoulders from that wound; he was bloody down to his knees.

"Counsel for the defendant then asked the witness this question: Q. Did much blood come down on his shoulders from this wound, or little? To which the State interposed an objection. The Court sustained the objection and to the action of the Court the defendant then and there duly reserved an exception.

"His whole face was bloody and blood was coming down on his head like anything that was bleeding. His shirt and pants were bloody down below his knees."

Counsel for appellant argues there was error in sustaining objection by the State to the question: "Did much blood come down on his shoulders from this wound, or little?"

The argument is that evidence of a small amount of blood from this source would tend to support the testimony of defendant to the effect that deceased knocked him down, was on top of him beating him, when defendant drew his knife and cut deceased, thus accounting for much blood on the face and clothing of defendant.

This testimony of defendant was not in when the ruling complained of was made, and nothing appears to have been made known to the court touching the matters now insisted upon. The testimony of witness Holliday, on the extent of defendant's wounds and bleeding therefrom, was quite as full as the issues then developed called for. With regard to this, as well as several other rulings, we remark that, where objection is sustained, but the party, nevertheless, proceeds to get in the evidence sought, in substance and effect, which is not excluded and remains for the jury's consideration, the initial ruling, if erroneous, is harmless.

Mark Williams, a witness for the State, testified that he saw deceased when he left home that day, going in the direction of Newbern; that the body of deceased was found 272 yards from his house.

The solicitor asked the witness: "Prior to that, on that day, had the defendant and the deceased had any angry words with each other?"

Objection by defendant being overruled and exception reserved, witness answered: "Yes, sir."

The witness then testified that before deceased left the house and went toward Newbern the defendant had gone in the same direction.

The solicitor then asked: "Did you hear him say anything to the deceased before he left?"

Over objection of defendant, the witness was permitted to answer in effect that defendant said in insulting language that he was going to Mr. Spencer, the landlord of the two negroes, and have deceased put off the place. To this deceased replied: "That's all right. I will be there when you get there." The witness further testified deceased left about half an hour after defendant. On cross-examination, after repeating defendant's threat to have deceased run off the place, witness was asked: "Isn't it a fact that James Jefferson had let his cow or hog get in the defendant's crop that day and they had had a fuss about that and defendant told deceased he was going to see Mr. Spencer about his stock?"

The court sustained the State's objection to this question and exception was reserved. It was competent for the State to show the fact of a former difficulty on that day, but not the particulars. The answer "Yes" to the inquiry whether the parties had angry words did not go into...