Rowlan v. State, 6 Div. 68

• Court: Alabama Court of Appeals
• Writing for the Court: BROWN, J.
• Citation: 14 Ala.App. 17,70 So. 953
• Parties: ROWLAN v. STATE.
• Docket Number: 6 Div. 68
• Decision Date: 03 February 1916

70 So. 953

14 Ala.App. 17

ROWLAN
v.
STATE.

6 Div. 68

Court of Appeals of Alabama

February 3, 1916

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. [70 So. 954]

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 [70 So. 955.] 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 [14 Ala.App. 21] 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...