Sanders v. State

• Decision Date: 09 April 1942
• Docket Number: 2 Div. 178.
• Citation: 7 So.2d 483,242 Ala. 532
• Parties: SANDERS v. STATE.
• Court: Alabama Supreme Court

7 So.2d 483

242 Ala. 532

SANDERS v. STATE.

2 Div. 178.

Supreme Court of Alabama

April 9, 1942

Geo O. Miller and Geo. O. Miller, Jr., both of Livingston, for appellant.

Thos. S. Lawson, Atty. Gen., for the State.

FOSTER Justice.

The evidence most favorable for defendant and given by his own testimony was that he and deceased had a difficulty about thirty minutes before the killing at Johnnie Thomas' house; that defendant left and went to his home and got his shot gun and went down the road to meet Bobby Dancer, the deceased, "as he said he was coming to my house to kill me." And again he said "I got my gun and I was going down to the road to meet him and settle our trouble." And "he next saw Bobby Dancer in the road. Me and him got up to the road about the same time. We met there," and he "reached in his pocket and got his knife and pulled it out and told me he was going to kill me. He had a switch blade pocket knife and was advancing on me all the time. I asked Bobby, 'what I done to you for you to treat me as you do,' and he replied, 'I am going to kill you if it is the last thing I do.' That is all that happened and I shot him." "The witness was asked if Bobby Dancer had ever before threatened his life and replied that he had, and it was about two or three weeks ago he walked up and stuck me with a knife. To this statement the solicitor objected and the court instructed the jury not to consider what was said with reference to the deceased walking up to the defendant and sticking him with a knife and instructed the defendant's attorney that he could not testify about the details. Defendant's attorney duly and legally excepted and stated to the court that he offered to show that on two occasions prior to the killing, he had not only threatened the life of this defendant, but had approached him with a view of taking his life and one time stabbed him in the arm. That was about two weeks prior to the killing and about thirty minutes prior to the killing he had to flee from the deceased man, and that the deceased man's brother interferred and took him back. 'We offer to show that'. The solicitor objected and the court sustained the objection, to which ruling the defendant duly and legally excepted. The witness continued as follows: That he left the home of Johnnie Thomas and went to his home; that his wife and children were at home; that he got his gun and went on down to the road; that he (Bobby Dancer) approached him and he was backing up until he shot him and Bobby Dancer was coming from the direction of Johnnie Thomas' house, where he last saw him."

Defendant also later offered to prove the bad character of deceased for peace, quiet, turbulence and violence. The court sustained objection, and defendant duly excepted.

The State may introduce evidence of a prior difficulty between defendant and the assaulted party in which defendant was "concerned in an assault on him with a knife, whereby he was severely cut in the neck, a short time before the assault charged in the indictment." Such not being a statement of "the details or particulars" of that difficulty. Gray v. State, 63 Ala. 66.

"The fact of such difficulty, and its gravity, or the contrary" may be shown. McAnally v. State, 74 Ala. 9, 17. And "the fact that on the day before the killing deceased attacked defendant with scissors accompanying the attack with a threat * * * was not going into the details or merits of the altercation." Watts v. State, 177 Ala. 24, 59 So. 270, 272. And "that on that day deceased shot at the defendant [and at another time] drew a 'gun' on the defendant [with threats to kill him] were matters the defendant was entitled to have admitted in evidence," and were not of too much detail. Nelson v. State, 13 Ala.App. 28, 68 So. 573.

And when defendant offered to prove that in a previous difficulty "the deceased was armed with a gun and made a hostile demonstration by pointing the gun at the defendant," the court was held to have erred in rejecting this evidence after defendant had offered evidence tending to show that decedent was the aggressor. Buffalow v. State, 219 Ala. 407, 122 So. 633, 634. To like effect is Stinson v. Richardson, 239 Ala. 161, 194 So. 508. Compare Harkness v. State, 129 Ala. 71, 30 So. 73.

When such evidence is offered by the State showing the conduct of defendant on the former occasion, it is to illustrate his acts at the time of the fatal difficulty. Gray v. State supra; McAnally v. State, supra. When it is offered by defendant, it must be subsequent to evidence tending to show self-defense. Maxwell v. State, 220 Ala. 419, 125 So. 682; 11 Alabama Dig. p. 447, Homicide, k190(3). Its admissibility is on the same principle which justifies threats by decedent previously made and communicated, Myers v. State, 62 Ala. 599, and which justifies evidence of words which show a hostile state of mind toward defendant, Robinson v. State, 235 Ala. 7, 176 So. 812, and the violent character of deceased. DeArman v. State, 71 Ala. 351,...