Sims v. State
| Decision Date | 01 June 1950 |
| Docket Number | 6 Div. 999 |
| Parties | SIMS v. STATE. |
| Court | Alabama Supreme Court |
Matt Murphy, Jr., of Birmingham, for appellant.
A. A. Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty. Gen., for the State.
The question on this appeal is the identity of appellant as the one who killed deceased by shooting him. Deceased was a watchman and the shooting was without provocation. Besides his confessions made to several different persons, there was further proof of the identity of his finger prints made after his arrest with some made of him on a former occasion. There is no question raised as to the competency of the witness taking the finger prints and explaining them. See, Leonard v. State, 18 Ala.App. 427, 93 So. 56.
During the examination of the witness, State's counsel asked him question in respect to finger prints formerly made of defendant. The following occurred during such examination:
Objection was made to this by defendant's counsel because it had not been shown how he knew they were the defendant's finger prints. No ruling was made on this objection.
The State's counsel then asked: '
Objection was made by defendant's counsel and a motion was made to exclude. Thereupon the State's counsel asked that it be excluded. Defendant's counsel then moved for a mistrial because the statement of the witness was highly inflammatory. The court granted the motion of State's counsel and stated
During the further examination of the witness, the question was asked by the State's counsel: 'Were these photographs taken at the time you took those finger prints?' Answer:
Defendant's counsel asked for a mistrial on the ground that the statement of the witness as to the first arrest was unlawful and should not have been made. The court overruled the motion for a mistrial and instructed the jury that they should not consider the statement made by the witness that defendant had been arrested for an alleged crime before this offense is alleged to have been committed, and charged them that they should give no consideration to that statement.
Counsel for appellant insists that there was reversible error in the refusal of the court to grant a mistrial on account of the injection into the evidence of the fact of a former arrest of the defendant. We observe however that the former arrest came out incidentally, not in response to a question which directly called for it, and was by reason of an objection made by defendant's counsel that the so-called known finger prints of the defendant had not been shown to be his. The witness was merely stating the occasion when said so-called known finger prints were made. It is our view that evidence of that kind is merely incidental to the matter of the taking of his finger prints and showing the occasion for doing so, tending to show the identity of defendant with the finger prints then taken. The taking of defendant's finger prints at a certain time without any explanation for doing so would cast a reflection upon the fact that they were actually the finger prints of the defendant. But whether so or not, the State's counsel in one instance requested that such evidence be excluded and it was excluded. In another instance, the court excluded such testimony without the same being withdrawn by the State's counsel. In doing so the court was careful to instruct the jury that they should not consider the statement the witness made with respect to a former arrest of the defendant. It is our view there could be no prejudice resulting to him on account of that state of the record.
During the examination of the coroner, he was asked with reference to an alleged confession by defendant to him and, in detailing that confession, he stated that defendant shot the deceased with a thirty-two rifle, and that he and another boy had tried to hold up two more men before that and that he got away. Defendant's counsel objected to that statement of the witness and the solicitor immediately requested that 'it go out as evidence' in the case, and stated to the witness to get down to the occasion of the defendant shooting John Harden, the deceased. Thereupon, defendant's counsel made a motion for a mistrial on the ground that it tended to inflame the minds of the jury. This motion was overruled, and defendant excepted. The witness then stated that the defendant told him that he hid the rifle down by the bedding factory and went over to the freight lines and saw Mr. Harden sitting in a rocking chair and asked him the way to Bessemer; that Mr. Harden showed him the way to Bessemer; and then he proceeded to tell how he shot Mr. Harden.
It is our view that there was no prejudicial error shown in this respect. Any reference to a former crime was immediately excluded, and we think it was not sufficient to justify a mistrial.
There were several confessions introduced in evidence upon proper preliminary proof being made that they were voluntary, some of them were in writing and some were verbal. Some of them contained a written statement of the questions to him and the answers given in respect to his conduct on the night when the deceased was killed. Being asked in detail as to what he did immediately preceding the shooting of the deceased, the following questions and answers were given:
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