Rollings v. State

• Decision Date: 13 April 1909
• Citation: 49 So. 329,160 Ala. 82
• Parties: ROLLINGS v. STATE.
• Court: Alabama Supreme Court

49 So. 329

160 Ala. 82

ROLLINGS v. STATE.

Supreme Court of Alabama

April 13, 1909

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

John Rollings was convicted of manslaughter in the first degree and appeals. Reversed and remanded.

John A Lusk, for appellant.

Alexander M. Garber, Atty. Gen., Thomas W. Martin, Asst. Atty. Gen and Street & Isbell, for the State

MAYFIELD J.

Accused was indicted for murder, and was convicted of manslaughter in the first degree, from which judgment of conviction he appeals. There was no question or dispute that defendant killed the deceased, intentionally, by shooting him with a gun and a pistol. There was no question as to the identity of the accused nor as to that of the deceased. The sole dispute was whether or not defendant acted in self-defense. If he did not, the only question for the jury was the degree of the crime and of the punishment to be inflicted.

The jurors challenged by the state were subject to the challenge for cause--made so by the statute--and there can be no error in allowing the challenge by the state or by the accused. It was made to clearly appear that the jurors challenged had a fixed opinion as to the guilt or innocence of the accused, which would bias their verdict. They should have been challenged by one or the other of the parties.

It was clearly competent to show that defendant had a pistol prior to the killing. It might tend to show preparation for the crime, and was admissible for this purpose, if for no other. It was also proper to allow the state to prove that, several hours prior to the killing, deceased had no pistol. The accused relied upon self-defense, and his evidence was to the effect that deceased was attempting to draw a pistol, with which to shoot accused, at the time the fatal shots were fired. Therefore that deceased, several hours before the rencounter, had no pistol, was a circumstance legitimate to disprove the only defense attempted. Its tendency may have been very slight, but, no matter how slight, it was competent for this purpose. The state had a right to show that deceased was unarmed at the time of the killing, and to show that he did not have the saddlebags with him at the time he was killed, as claimed by the accused, and also that he was not in the habit of carrying them, as was claimed and attempted to be proven by the accused. All this evidence had a tendency to disprove the only defense attempted to be set up. Wiley's Case, 99 Ala. 146, 13 So. 424; Naugher v. State, 116 Ala. 466, 23 So. 26.

The character of the wife of the defendant was wholly irrelevant and immaterial on this trial, as a substantive fact. Evidence of improper relations between her and deceased might be relevant to show malice or motive, on the part of the accused, or have a tendency to show who provoked or brought on the difficulty, and proof of this improper relation would, of course, be evidence of bad character; but the improper relations cannot be proven by evidence of her bad character. The state should not have been allowed, over the objections of the accused, to prove the general character of his wife or her character for chastity. She was not a witness, and could not be a witness for or against him. Proof of her bad character could not go to the credibility of the defendant or his other witnesses, nor is he criminally or civilly liable for character as to chastity. Her chastity of itself would not justify him in killing the deceased, nor would her unchastity make him guilty when, but for it, he would be innocent. The character of the wife cannot be made a direct subject of inquiry, on a trial of the husband for crime, when she is not a witness and not interested in, nor in any manner connected with, the prosecution or defense. It was not a subject of inquiry in this case, except in so far as it was involved by showing improper relations between her and deceased, and these relations could not be shown by proof of her character. We know of no authority for allowing proof of the good or bad character of a third party or stranger to a suit, when not a witness. 1 Elliott on Ev. 168.

The clothing of deceased, as well as that of the accused, letters found on the body of deceased, the instruments causing the death, photographs of the deceased and accused, maps and plats of the scene of the crime, pieces of cloth, buttons gun wadding found near the scene of the crime, bullets cut from houses and trees near such scene, blood stains, etc., are usually held admissible on trials of homicide. There are only a very few cases in which they have been excluded, when offered as evidence for the inspection of the jury, if tending to elucidate the transactions, to identify any of the parties, to connect the accused with the crime, or to show the character of the wound, motive or intent of the killing, or degree of the crime--whether the killing was in self-defense or not. If such objects tend to corroborate or disprove, illustrate or elucidate, any other evidence, they are admissible, though such evidence may have a tendency to bias or prejudice the jury, or to elicit their sympathy for, or animosity toward, either the deceased or the accused. 1 Mayfield's Dig. p. 667; 5 Mayfield's Dig. p. 390. But in order for such objects to be admissible in any case, civil or criminal, they must have some tendency to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some...