Rowlan v. State

Decision Date03 February 1916
Docket Number6 Div. 68
Citation14 Ala.App. 17,70 So. 953
PartiesROWLAN v. STATE.
CourtAlabama Court of Appeals

Appeal from Criminal Court, Jefferson County; H.P. Heflin, Judge.

Jennie Rowlan, alias, etc., was convicted of an assault with intent to murder one Levi F. Clayton, and she appeals. Reversed and remanded.

Murphree & Richardson, of Birmingham, for appellant.

W.L Martin, Atty. Gen., and J.R. Tate, of Birmingham, for the State.

BROWN J.

The testimony of the witness Screws as to the declaration made by the defendant to Clayton after the shooting was properly admitted. This declaration was in the nature of a threat, and tended to show malice on the part of the defendant. Maddox v. State, 159 Ala. 53, 48 So. 689; Harris v. State, 177 Ala. 17, 59 So. 205; Marks & Co. v Hastings, 101 Ala. 165, 13 So. 297; Henderson v State, 70 Ala. 23, 45 Am.Rep. 72.

The conduct of the defendant in going to Bain immediately after he was shot appears to have been the spontaneous action of the defendant and the natural outgrowth of the occurrence, and was so closely connected with the shooting as to make it a part of the res gestae, and had some tendency to show that the defendant was acting in concert with Bains. Bessierre v. Alabama City, Gadsden & Attalla R.R. Co., 179 Ala. 330, 60 So. 82.

Silence in the face of pertinent accusation of crime by the party accused partakes of the nature of a confession, and is admissible as a circumstance to be considered by the jury as tending to show guilt; but, to be admissible, it must be shown that the accused heard and understood the charge against him under circumstances calling on him for a denial, and that he was silent. Underbill, Criminal Evidence, §§ 122-124; Jones v. State, 156 Ala. 175, 47 So. 100; Brown v. Commonwealth, 86 Va. 935, 11 S.E. 799; Commonwealth v. Brailey, 134 Mass. 527; Jones v. State, 107 Ala. 93, 18 So. 237. The statement of the witness Screws, "I saw Jennie [the accused] in an automobile with Susan Watts, Mr. Clayton, and the body of Sam Bains several hours after she shot Mr. Clayton, and I said, 'There is the big fat woman who shot Mr. Clayton,' " is not brought under the rule. It is not made to appear that this statement was made to or in the presence or hearing of the accused, nor is it shown that she was silent. Silence in the face of accusation is the evidentiary fact, and not the accusation. The court erred in overruling the objection to the question and the defendant's motion to exclude the answer.

"The general rule is that witnesses must testify to facts, and are not permitted to express mere matters of opinion. The rule has its boundaries and exceptions, which are as well defined as the rule itself. Where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind; or, if from the nature of a particular fact, better evidence is not obtainable, the opinion of a witness derived from observation is admissible." Mayberry v. State, 107 Ala. 67, 18 So. 219; Bullington v. State, 69 So. 321. Under this exception to the general rule it was held in the case first above cited that a witness may testify that one had in his pocket an object that "bore a resemblance to the impression of a pistol." And again, on the trial of one indicted for murder, where the evidence showed that several shots were fired on the occasion of the homicide at night by the person or persons who assaulted the deceased, and where there was a question as to whether they were all fired by one man, a witness who has looked on at the flashes of the guns at different places, noting their nearness in point of time and apparent distance apart in point of space, and hearing and noting the closeness of the reports, is competent to give an opinion as to whether one man could have fired all the shots. Kroell v. State, 139 Ala. 1, 36 So. 1025. And again, where one of the issues in a cause was as to the speed of a train, that a nonexpert who saw the train passing, and who on previous occasions had observed the speed of trains, could express an opinion as to the speed of a train. L. & N.R.R. Co. v. Stewart, 128 Ala. 313, 29 So. 562. Again, that a witness who heard the report of a gun might testify that: "It went like a rifle." Fowler v. State, 8 Ala.App. 168, 63 So. 40. In that case it was said:

"The law recognizes that a rule of evidence which would confine
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19 cases
  • Bachelor v. State
    • United States
    • Alabama Supreme Court
    • May 5, 1927
    ...the truth of the statement, and that such affirmation was voluntarily made. Delaney v. State, 204 Ala. 685, 87 So. 183; Rowlan v. State, 14 Ala.App. 17, 70 So. 953; Everage v. State, 113 Ala. 102, 21 So. Blair v. State, 211 Ala. 53, 99 So. 314; McGehee v. State, 171 Ala. 19, 55 So. 159; Whi......
  • Birmingham & A. Ry. Co. v. Campbell
    • United States
    • Alabama Supreme Court
    • April 17, 1919
    ...196 Ala. 61, 71 So. 701; Smith v. State, 197 Ala. 193, 196, 72 So. 316; Sexton v. State, 13 Ala.App. 84, 86, 69 So. 341; Rowlan v. State, 14 Ala.App. 17, 70 So. 953; Greenl.Ev. § 108; Travelers' Ins. Co. v. Whitman, 80 So. 470. To justify the introduction of this evidence, it must have been......
  • Cain v. State
    • United States
    • Alabama Court of Appeals
    • November 13, 1917
    ... ... that the defendant replied he did not kill her, should not be ... admitted. The denial of the charge by the defendant renders ... this statement inadmissible. It is only where one charged ... with crime remains silent that it is construed as an ... admission against him. Rowlan State, 14 Ala.App. 17, 70 So ... For the ... error pointed out, the judgment will be reversed, and the ... cause remanded ... Reversed ... and ... ...
  • Scott v. State
    • United States
    • Alabama Supreme Court
    • April 17, 1947
    ... ... remained silent in circumstances which ' naturally called ... for a reply' and the party to be affected by it must be ... in a situation ' in which he would probably respond to ... it.' Jones v. State, 156 Ala. 175, 176, 180, 47 ... So. 100, 102; Rowlan v. State, 14 Ala.App. 17, 70 ... So. 953; Raymond v. State, 154 Ala. 1, 54 So. 895; ... Underhill's Criminal Evidence, 4th Ed., §§ 259, 260 ... The ... defendant having been warned by 'the law' that he did ... not have to speak, it is my opinion that the circuit court ... ...
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