Smith v. State, 6 Div. 547.

• Decision Date: 13 February 1940
• Docket Number: 6 Div. 547.
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

195 So. 290

29 Ala.App. 212

SMITH v. STATE.

6 Div. 547.

Court of Appeals of Alabama

February 13, 1940

Rehearing Denied Feb. 27, 1940.

Appeal from Circuit Court, Winston County; R. L. Blanton, Judge.

Jim Smith was convicted of murder in the second degree, and he appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Smith v. State (6 Div 653) 195 So. 293.

Pennington & Tweedy, of Jasper, for appellant.

Thos. S. Lawson, Atty. Gen., and Wm. H. Loeb Asst. Atty. Gen., for the State.

PER CURIAM.

The homicide in this case grew out of a difficulty between two substantial citizens of Winston County, Alabama. Prior to the time of the difficulty the parties had been friends.

The evidence tends to show that the two parties fell out over the failure of the dead man's son to be reelected as a teacher of the school in the community, of which school the defendant was one of the Trustees. The testimony, further, tends to prove that after a few words Drake, the dead man, struck the defendant over his eye with his fist and had his arm drawn back to strike him again when the defendant struck him one time with a knife, in a vital place in the neck, from which wound Drake died.

The record in this case beginning with the selection of the jury and on through the taking of the testimony, the charge of the Court and the verdict, indicates a trial of more than ordinary interest and a tenseness rarely to be found in the trial of ordinary cases.

The only two witnesses who testified to the beginning of the difficulty were the defendant, and a witness by the name of Rufus Mann, who was examined as a witness for the State. Mann testified that he saw the trouble between the two men resulting in the death of Drake; that the first thing he saw was Drake hit Smith above the eye, then he hit him again Smith threw up his left hand and knocked off a lick and then struck Drake on the left side. This witness saw no knife in the hand of either party. This, in brief, describes the difficulty between the parties resulting in the death of Drake. There was some evidence that after the blow was struck, Smith did everything he could to try to stop the flow of blood.

On the trial of the case and before the defendant testified, the character witnesses for the defendant should have been limited in their testimony on cross-examination to what they knew of defendant's character before the difficulty; and to permit such witnesses to testify as to what they had heard since the difficulty and the death of Drake was error. As illustrative of this point, when these witnesses were testifying as to the defendant's character, the defendant had not taken the stand.

The witness Pickard was allowed to testify, over the objections and exceptions of the defendant, that since this prosecution he had heard about the trouble he (defendant) had with a Mr Drake about a schoolhouse, building a house, shingling it or something.

The Court stated in making his ruling that: "The court states the time involved is the time of the occurrence. * * * but the court is ruling if the man has learned since the occurrence what his reputation was then, he can say, it does not make any difference when he learned it; when you say now what it was then."

The foregoing involved several rulings of the Court on this question, but it is unnecessary to set them out, other than to say they were all to the same effect.

In the case of McKenney v. State, 17 Ala.App. 117, 82 So 565, 566, Bricken, J., used this language: "If reference was had to the character of the defendant, the witness was confined to what he knew of that character before the difficulty, not what he had heard since that time."

This same question was before this Court in Mitchell v. State, 14 Ala.App. 46, 70 So. 991, 993. In that case the opinion was written by the present Mr. Justice Brown of the Supreme Court, who was at that time a member of this Court, and in holding that a witness could not testify with reference to character as to matters coming to his knowledge after the alleged commission of the crime, the Justice said: "Repute concerning specific acts affecting the character of one accused of crime after its commission too often emanate from sources of prejudice, interest, and bias growing out of the alleged criminal act, and to allow testimony affected with such infirmities would offer too much incentive for the circulation by interested parties and their friends of false reports, for the purpose of destroying the general reputation of the accused and depriving him of the benefit of a good character."

In the case of Windom v. State, 18 Ala.App. 430, 93 So. 79, 82, this Court said: "* * * * on cross-examination of the witness it being developed that the information on which the opinion as to the general character of the defendant was obtained after the commission of the act for which defendant was being tried, it was error for the court to overrule defendant's motion to exclude the testimony."

It is true that the witness Pickard testified to the good character of the defendant, but the State had no right to make proof of incidents brought to the knowledge of the witness after the beginning of this prosecution. The State might have asked the witness the question, if he had not heard of certain facts; but the proof of the facts themselves, and not relating to the issues then being tried, was in itself illegal.

On the examination of the witness Swearigan, a witness for the State, the following took place: "Mr. Smith asked me if I got whipped or had any...