Roden v. State

• Citation: 69 So. 366,13 Ala.App. 105
• Decision Date: 03 June 1915
• Docket Number: 357
• Parties: RODEN v. STATE.
• Court: Alabama Court of Appeals

69 So. 366

13 Ala.App. 105

RODEN v. STATE.

No. 357

Court of Appeals of Alabama

June 3, 1915

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Buck Roden was convicted of manslaughter, and he appeals. Reversed and remanded.

The facts sufficiently appear from the opinion. The following charges were refused to the defendant:

"(A) You have a right to look at the interest, bias, and kinship with the deceased, if any, of the state's witnesses.

"(B) There is evidence before you tending to show that the deceased did strike the defendant.

"(C) The evidence tends to show that the deceased did strike the defendant with knucks.

"(D) If the defendant was not going down the road for the purpose for bringing on a fight or difficulty or making an assault upon the Martins, or some of them, then his presence on the public road on the occasion in question.

"(E) The burden of proof on the defendant as self-defense, or the elements of self-defense, known as danger or peril, and want of reasonable mode of escape, only requires that he offer evidence enough on these two propositions to raise in your minds a reasonable doubt as to whether they were present.

"(F) If there is one single fact proven to the satisfaction of the jury which is inconsistent with defendant's guilt, this is sufficient to raise a reasonable doubt, and if from such consideration of the evidence, the jury have a reasonable doubt of the defendant's guilt, they should acquit."

"(H) If any or all of the witnesses for the state have exhibited or admitted bias, prejudice, anger, or ill will against the defendant, or from all the evidence in the case you find such bias, prejudice, anger, or ill will on the part of all or any of the state's witnesses, and if these things, when considered by you in connection with all of the other evidence in the case, create in your minds a reasonable doubt of defendant's guilt, you should acquit.

"(I) You have a right to look at the conflict, if any exists in the testimony of the state's witnesses, and to consider the manner in which they gave their testimony, and in the light of the interest they have in a verdict in this case.

"(J) If you have a reasonable doubt of the guilt of the defendant, arising out of any part of the testimony, you should acquit."

John A Lusk & Son, of Guntersville, for appellant.

W.L Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

BROWN J.

The indictment contains but a single count, charging the offense of murder in the second degree and embracing the charge of manslaughter in both degrees. Stoball v. State, 116 Ala. 454, 23 So. 162.

The form of the verdict returned by the jury was:

"We, the jury, find the defendant guilty of manslaughter in the first degree, and we fix his punishment at seven years in the penitentiary."

This verdict was sufficiently specific and in proper form, and the words interlined in the verdict by the trial judge by consent of the defendant may be treated as surplusage. The verdict must be referred to the indictment, and the words "as charged in the indictment" are nonessential. McDonald v. State, 118 Ala. 672, 23 So. 637; Washington v. State, 117 Ala. 30, 23 So. 697; Watkins v. State, 133 Ala. 88, 32 So. 637; Durrett v. State, 133 Ala. 119, 32 So. 234.

The court, without violating any rule of evidence or practice could have overruled the motion of the solicitor to exclude the statement made by the witness Frank Martin on cross-examination in response to questions asked by the defendant's counsel, to wit, "I might have shot him if I had got back down there," for the reason that no objection was made to the question calling for the statement. Dowling v. State, 151 Ala. 131, 44 So. 403. However it was not error for the court to exclude the statement, which was nothing more than the speculation of the witness at the time he was testifying as to what he might have done if different conditions had existed at the time of the difficulty, and was wholly immaterial. The witness admitted that his feelings towards the defendant were not good, and stated that he had a grievance that justified his ill will towards the defendant. The state of feelings of a witness for the prosecution towards the defendant is a legitimate subject of inquiry, and it is permissible, on cross-examination, to bring out previous acts and declarations tending to show hostility. McHugh v. State, 31 Ala. 317; Henry v. State, 79 Ala. 43; Fincher v. State, 58 Ala. 215. But it is not permissible for the witness to state matters of speculation as to what might have occurred under different conditions, or if certain things had transpired, for the purpose of showing bias. Mere speculation, like emotions and passions, is not a physical entity that is susceptible of proof as such. Carney v. State, 79 Ala. 14; Thornton v. State, 113 Ala. 47, 21 So. 356, 59 Am.St.Rep. 97.

While it is permissible to show ill will of a witness toward the accused, it is not permissible to go into the particulars of the transaction causing such hostile feeling. The only fact that is material in this respect is the state of feelings of the witness toward the accused, and whether or not his testimony is biased thereby, and the cause engendering the hostile feeling, or whether there is any basis for such hostility, is wholly immaterial.

While a question eliciting testimony as to the state of feelings of the witness towards the accused is not objectionable because it refers to some particular transaction, such as the question held proper in Sanford v. State, 143 Ala. 83, 39 So. 370, "Is it not a fact that you and Sanford are unfriendly on account of a whisky bill that you owe?" it is not permissible to inquire into the particulars of the transaction, and questions not embodying an inquiry as to the state of feelings of the witness are improper. Moore v. State, 10 Ala.App. 179, 64 So. 520. Therefore the court did not err in sustaining the objection of the solicitor to the question, "What about?" asked the witness Hattie Sims, after she had testified, "I don't like the defendant and have not for a good while. I fell out with him about four months ago."

As held in Rigell v. State, 8 Ala.App. 55, 62 So. 977, the opinions or conclusions of a medical expert are not admissible to show the position of the injured person at the time the wound was inflicted. McKee v. State, 82 Ala. 37, 2 So. 451. Yet the position of the defendant's arm at the time the wound was inflicted on him was a pertinent and material fact and the subject of proof by the positive testimony of an eyewitness, or by inference from physical facts, which it was the province of the jury to draw, and, if the objection that the question propounded to Dr. Thomason as to the position of the defendant's arm at the time the wound was inflicted called for a conclusion or opinion of the witness had been urged, it would have been the defendant's right to have it sustained; but the objection assigned that the question calls for illegal, inadmissible, and incompetent evidence is a general objection, and does not present the question, and the court did not err in overruling the objection. Reid v. State, 168 Ala. 123, 53 So. 254; Johnston v. Johnston, 174 Ala. 225, 57 So. 450; Coghill v. Kennedy, 119 Ala. 641, 24 So. 459; Steiner v. Tranum, 98 Ala. 315, 13 So. 365.

The showing made for the absent witness, when it was presented to the solicitor and admitted by him as a showing, became a court paper, and the solicitor had a right to use it in conducting the cross-examination of the witness for whom the showing was made. The showing itself, in the absence of evidence that the defendant had practiced a fraud upon the court in an attempt to further his defense by a false statement of facts to be used as evidence in his behalf, was not admissible in evidence. Brown v. State, 142 Ala. 293, 38 So. 268. The contents of the showing were not disclosed to the jury, and for all this record shows, what was set out in the showing was not in conflict with the testimony given by the witness, and we discover nothing improper or prejudicial to the defendant's rights in the ruling of the court on this matter.

The deceased and his son attended church services at "Baker's Chapel," and the difficulty between the...