Sharp v. State

• Decision Date: 11 February 1915
• Docket Number: 693
• Citation: 69 So. 122,193 Ala. 22
• Parties: SHARP v. STATE.
• Court: Alabama Supreme Court

69 So. 122

193 Ala. 22

SHARP v. STATE.

No. 693

Supreme Court of Alabama

February 11, 1915

Rehearing Denied May 13, 1915

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Tim Sharp was convicted of murder in the first degree, and he appeals. Affirmed.

Merrill & Walker, of Anniston, for appellant.

W.L Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

THOMAS J.

The defendant was convicted of murder in the first degree and sentenced to suffer death. He denied the killing, and sought to show that other persons present committed the crime. The undisputed evidence was that at the time of the homicide the deceased, William Dillard and Jim Dashwood, were policemen of the city of Anniston, and that a warrant for the arrest of the defendant was delivered to them, and that between 11 and 12 o'clock in the day, to execute the process, they went to Tenth street, where defendant lived in an upstairs room. The head of the stairway leading from the sidewalk was closed by a glass door covered from within by a cloth curtain. At the time of the homicide only the two officers were on the stairway; one standing close to the door, looking through the glass, and the other bending down, looking under the door. The cloth curtain was pulled aside, and two shots from within were fired, causing their death.

The evidence further showed that defendant's brother-in-law had that morning been arrested for violating the prohibition law, and that while procuring the execution of the bail bond the defendant made threats against the authorities issuing process against defendant and his brother-in-law, and who would come to arrest defendant. The state's counsel asked Will Rayfield the question, "Before he would be arrested, he would die and go to hell?" Witness answered, "He said it was not his whisky, and that he would die and go to hell before he was arrested." The defendant did not object to the question, before answer. After the answer, he moved to exclude, and the court properly overruled the motion. The rule is that objection must be addressed to the question when the question is propounded, if it is apparent that illegal testimony will be the answer. If the objection is not interposed until after answer responsive to the question the objection is properly overruled. A party cannot speculate on the answer of a witness, to claim the benefit of it, if favorable, or, if prejudicial, to have the testimony excluded on motion. If the question is such that material and relevant testimony may be the answer, and when answered the testimony is not responsive thereto, or is immaterial and illegal motion must then be made for the exclusion of the answer. Pope v. State, 168 Ala. 33, 53 So. 292; Downey v. State, 115 Ala. 108, 22 So. 479; Ellis v State, 105 Ala. 72, 17 So. 119; Wright v. State, 108 Ala. 60, 18 So. 941; Washington v. State, 106 Ala. 58, 17 So. 546; West Pratt Co. v. Andrews, 150 Ala. 368, 376, 43 So. 348; Rutledge v. Rowland, 167 Ala. 114, 49 So. 461; Kramer v. Compton, 166 Ala. 216, 221, 52 So. 351.

The defendant left the mountain, before day, in company with his brother-ln-law, Bobo, and witness Dear, and arrived in Anniston at about 4:30 a.m. Bobo was arrested for violating the prohibition laws, and defendant was seeking to have his bond made. Defendant told Dear that they had issued a warrant for defendant and Dear, charging the same offense; further stating to Dear that "they are liable to come up here after us after awhile; the first s____ of a b____ comes up here after me, I am going to shoot his head off." Later he said "that he would kill the first one that came there to arrest him." Mrs. Humphries, who was at defendant's room, said, "There are some policemen coming up," and asked defendant to "behave himself," and he replied, "Well, if it is them, I am going to kill them; I have done said it, and I am going to stick to it; I have done said it, and I am going to kill the first s____ of a b____ that sticks his head in the door." He went out of the room a short time thereafter. Two shots were fired by the defendant, and after he had fired on the policemen he walked down the hall to the back door, and then came into the room and said, "I am into it now; all you fellows get back into the room, and don't nobody know anything."

It is clear beyond a reasonable doubt that, at the time the officers were fired upon by the defendant, he acted upon malice against the officers, who were trying to execute the process on him; that he had formed the specific design or intention to kill any policeman who should attempt to arrest him; and that with malice, deliberation, and premeditation he intentionally shot the deceased, William Dillard, and this without justification, and with no other motive than to prevent an arrest of himself for a violation of the prohibition law. The threats made by the defendant against a class to whom the deceased belonged were properly admitted for the consideration of the jury, as tending to show that the killing was intentional and with malice, after deliberation and premeditation. Morris v. State, 146 Ala. 66, 90, 41 So. 274; Knight v. State, 160 Ala. 58, 64, 49 So. 764; Harrison v. State, 79 Ala. 29; Anderson v. State, 79 Ala. 8, 1 Mayf.Dig. p. 838, §§ 10, 11, 15; McManus v. State, 36 Ala. 285; Plant v. State, 140 Ala. 52, 37 So. 159.

The fact that the declaration of the threat did not particularize either of the deceased policemen by name did not render it inadmissible. It was for the jury to determine whether the deceased, by class, was referred to. The facts and circumstances under which the several declarations or threats were made affirmatively show that they were voluntary, and that there could be no valid objection that a proper predicate was not laid for the admission of the same. Heningberg v. State, 153 Ala. 13, 45 So. 246; Stone v. State, 105 Ala. 60, 17 So. 114; Price v. State, 117 Ala. 114, 23 So. 691; Bush v. State, 136 Ala. 85, 33 So. 878; Morris v. State, supra.

It was necessary to locate exactly the position of the deceased policemen when they were fired upon, to locate the defendant and the several parties present, and to show their opportunity for seeing and knowing who committed the offense. It was then competent to prove by Dr. E.M. Sellers, a practicing physician, who examined the bodies of Dillard and Dashwood, the nature and charactor of the wounds; and it was competent to show by witness Claude Dear that he and Sol Brimer were at the time of the shooting sitting on a bed, from which position the front door where the shooting occurred could be seen, and that they did see the defendant fire the two shots through the glass door, after removing the curtain There was no error in permitting the witness to answer the question, "State whether or not Sol Brimer was sitting on a line from the bed, through that door, to the hall door."

The evidence showed that witnesses Claude Dear, Sol Brimer, Will Rayfield, and Ike Gaston were in defendant's room before and at the time of the shooting, and that they were arrested and put in jail on the day of the killing. A deputy sheriff, Borders, was asked, "Where were they placed?" The court asked the solicitor, "What is the object?" and the solicitor replied, "My object, if your honor please, is to show they were put separate, one in one jail, and one in the other." Over defendant's objection and exception, the solicitor was permitted to ask the witness the questions, "Where were they placed?" and witness answered, "Claude Dear was put in the city hall, and Sol Brimer was put down in the county jail." "Where were Will Rayfield and Ike Gaston?" and witness answered, "Ike was locked up first in the city hall, and Will Rayfield in the county jail." The solicitor asked, "Has Brimer or Dear been where they could communicate with each other or talk with each other since the time they were arrested until they came here to-day?" and witness answered, "They could not talk to each other; they were kept separate all the time."

These several questions and answers, separately and severally objected to by defendant, were competent as tending to shed light on the truth or falsity of the testimony of the witnesses. The right of "sequestration of witnesses" has not been questioned. If the judge deems it essential to the discovery of truth that witnesses should be examined out of the hearing of each other, he will so order it. This order, upon the motion or suggestion of either party, is rarely withheld; but, by the weight of authority, the party does not seem to be entitled to it as a matter of right. 1 Greenl. on Ev. § 432. On the examination of witnesses, it is likewise competent to show the opportunity that witness had of seeing, hearing, or knowing the facts stated, and interest or bias, that the jury may be the judges of the credibility of the testimony. The questions propounded to, and the answers of, Deputy Sheriff Borders were competent as tending to rebut an inference that might be drawn unfavorable to these witnesses, on account of the similarity of their testimony.

The solicitor, in argument to the jury, said:

"Don't you think it about time we are calling a halt in the country? Don't you think there has been enough officers killed in this country by outlaws, and it is about time to stop them?"

The defendant objected to this statement. In Birmingham Railway, Light & Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Mr. Justice Somerville, for the court, says:

"The effect of our decisions is that a mere objection to already spoken words does not reach the evil aimed at, and that the court must be appealed to to exclude them from the consideration of the jury, failing which there is nothing presented for review by an exception.

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