Sexton v. State

• Decision Date: 17 June 1915
• Docket Number: 364
• Parties: SEXTON v. STATE.
• Court: Alabama Court of Appeals

69 So. 341

13 Ala.App. 84

SEXTON v. STATE.

No. 364

Court of Appeals of Alabama

June 17, 1915

Rehearing Denied July 19, 1915

Appeal from Circuit Court, Crenshaw County; A.H. Alston, Judge.

Dozier Sexton was convicted of manslaughter in the first degree, and he appeals. Affirmed.

Frank B. Bricken, of Luverne, and D.M. Powell of Greenville, for appellant.

W.L Martin, Atty. Gen., and W.H. Mitchell, Asst. Atty. Gen., for the State.

BROWN J.

The defendant killed A.D. Pettey by shooting him with a pistol and was indicted for murder in the second degree, and convicted of manslaughter in the first degree.

The killing occurred at the house of Cleve Perdue, a negro, where a negro "frolic" was in progress, which was attended by several white men, among others the defendant and the deceased, both of whom were drinking.

Bud Grayson, the first witness examined in behalf of the state, testified:

That the deceased was killed March 7, 1914, by the defendant, and "the way the killing happened was there was two negroes got to tusseling over a pistol and shot it, and General Burgins and Dozier [the defendant] went there too, and they went together for a fight, and A.D. Pettey run in to part them, and did part them. Manford carried General outdoors, and Dozier held onto him awhile, and at last they made friends, and A.D. Pettey walked off in the corner of the house for something or another, and Dozier [the defendant] set up on the side of the bed and sat there a minute, and got up and walked over to A.D. Pettey and said, 'I wouldn't have thought you would have acted the damned son of a bitch with me you have,' and shot him. The bullet struck near the left eye. A.D. Pettey was not doing anything at the time he was shot."

At this stage of the evidence the previous conduct of the deceased was wholly immaterial. If this evidence was true, Pettey had not been in a difficulty with the defendant, but had merely interfered as a peacemaker, and as a result of his efforts the defendant and Burgins had made friends, and the homicide was wholly unprovoked and without the shadow of justification. The fact that Pettey, if such was a fact, had been there for some little time and had been dancing with the negroes, afforded the defendant no justification for his act, and had no tendency to shed light on the killing or the cause thereof. The foundation of the rule permitting the proof of all incidents constituting a part of the res gestae is that the facts which are considered a part of the res gestae tend to prove or shed light on the essential facts of the case as illustrative of the conduct of the parties and the intent and motive prompting action. Lunsford v. State, 2 Ala.App. 38, 56 So. 89; Underhill, Cr.Ev.§§ 93-96; Bessierre v. A.C.G. & A.R.R. Co., 179 Ala. 331, 60 So. 82; Barnett v. State, 165 Ala. 59, 51 So. 299.

Evidence of threats made by the deceased is not admissible until some proof has been offered tending to show self-defense. Dunn v. State, 143 Ala. 67, 39 So. 147; Bluett v. State, 151 Ala. 41, 44 So. 84; Martin v. State, 144 Ala. 8, 40 So. 275; Fleming v. State, 150 Ala. 19, 43 So. 219; Underhill, Cr.Ev. § 326.

At the time the court sustained an objection to the question, "Did he, A.D., say just before the pistol fired, he had come there to raise hell, and said, 'Boys, go your route'?" there was no evidence of self-defense in the case, and it is apparent that the question referred to the firing of the pistol by the two negroes who were scuffling over it some time previous to the killing. The objection to this question was properly sustained. The connection in which the question, "Didn't you see him, A.D. Pettey, hit Cleve Perdue over the head with a pistol right at that time?" was asked makes it uncertain whether the time referred to was the time of the shooting or the time the deceased was dancing with his person exposed, and this was sufficient to justify the court in sustaining the objection.

The defendant was not prejudiced by the ruling of the court in sustaining the solicitor's objection to the question, "Did you see anything in their hands?" The evidence of this witness showed that both defendant and the deceased had pistols, and the witnesses testified that the pistol of the deceased fell on the floor when defendant shot deceased.

It is not permissible for the defendant who has put his general character for peace and quiet in issue to go into the particulars. Particular acts, whether good or bad, or the reputation of having done them, cannot be shown in proof or rebuttal of good character, on the direct examination, although the rule is otherwise on cross-examination.

"Evidence of character goes to general repute, not particular acts, or specified conduct, the parties litigant being presumed to be prepared to meet the one, and not the other, which might do injustice by taking by surprise." Hussey v. State, 87 Ala. 132, 133, 6 So. 424; Greenl. Ev. (14th Ed.) § 461; Steele v. State, 83 Ala. 20, 3 So. 547; Jones v. State, 76 Ala. 8; Wharton, Cr.Ev. §§ 259, 260.

The court did not err in the rulings as to the...