Sharp v. State, 693

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

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, [69 So. 123] 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...