Smith v. State

• Decision Date: 01 June 1916
• Docket Number: 6 Div. 148
• Citation: 72 So. 316,197 Ala. 193
• Parties: SMITH v. STATE.
• Court: Alabama Supreme Court

72 So. 316

197 Ala. 193

SMITH v. STATE.

6 Div. 148

Supreme Court of Alabama

June 1, 1916

Rehearing Denied June 30, 1916

Appeal from Tuscaloosa County Court; Henry B. Foster, Judge.

Ella Smith was convicted of murder, and she appeals. Affirmed.

Etta McCaney testified that she was the sister of the dead man husband of defendant, and that the dead man came to her house, drunk, and lay down across the bed, and his wife sat down by him and took a nickel and a knife out of his pocket. Witness was permitted to say that defendant told her:

"When Will left me yesterday evening, he had 80 cents in his pockets."

After further testimony the witness stated that Ella Smith came to the kitchen and said she was going home, and asked witness if she would keep her child. The body was found on the bed dead with a knife wound in the heart. The defendant offered to testify to certain difficulties, and to certain wounds and cuts received in the same between her and deceased, while they lived at Bessemer, and some time prior to the difficulty. The other facts sufficiently appear.

The following charges were refused to defendant:

2B. The court must believe the defendant guilty beyond any and all reasonable chance of mistake before they can find the defendant guilty.

2C. Under the evidence in this case, the defendant was free from fault in bringing on the fatal difficulty.

2D. If you believe the evidence in this case, you cannot convict defendant of murder.

2E. If you believe the evidence in this case, you cannot convict defendant of murder in the third degree.

2G. If you believe the evidence in this case you cannot find defendant guilty of murder in the second degree.

24. If you know a single member of the jury is in doubt of defendant's guilt, growing out of any part of the evidence in this case, then you must return a verdict of not guilty.

26. I charge you that in this case it is your duty to acquit defendant, unless the evidence excludes every reasonable supposition but that of her guilt.

Howard L. Smith, of Tuscaloosa, for appellant.

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

THOMAS J.

The defendant was convicted of murder in the second degree, and sentenced to the penitentiary for 25 years.

1. There was no error of the court in permitting the witness Etta McCaney to detail certain statements made by the defendant. They were all collateral matters, and in no sense confessions of guilt; hence no predicate was required to be laid for their admissibility. Aiken v. State, 35 Ala. 399; McAdory v. State, 62 Ala. 154; Durrett v. State, 62 Ala. 434; Pentecost v. State, 107 Ala. 81, 18 So. 146; Love v. State, 124 Ala. 82, 27 So. 217; Meadows v. State, 136 Ala. 67, 34 So. 183; McGehee v. State, 171 Ala. 19, 55 So. 159; Watts v. State, 177 Ala. 24, 59 So. 270; Macon v State, 179 Ala. 6, 60 So. 312.

2. The lower court properly refused to allow the defendant to testify to the details of prior difficulties between herself and deceased. If so separated in point of time or circumstances from the act charged as not to constitute a part of the res gestae of the act for which the prosecution is had, such matter is inadmissible. Garrett v. State, 76 Ala. 18; Rutledge v. State, 88 Ala. 85, 7 So. 335; Stitt v. State, 91 Ala. 10, 8 So. 669, 24 Am.St.Rep. 853; Gordon v. State, 140 Ala. 29, 30 So. 1009; Sanford v. State, 143 Ala. 78, 39 So. 370; Bluett v. State, 151 Ala. 41, 44 So. 84; Patterson v. State, 156 Ala. 62, 47 So. 52; Robinson v. State, 155 Ala. 67, 45 So. 916; Jackson v. State, 177 Ala. 12, 59 So. 171; Wells v. State, 187 Ala. 1, 65 So. 950.

It is permissible to prove the fact of previous altercations between the accused and the deceased, as tending to show malice, ill will, or other motive for the killing. Gray v. State, 63 Ala. 66; McAnally v. State, 74 Ala. 9; Garrett v. State, supra; Stitt v. State, supra; Jackson v. State, supra; Wells v. State, supra.

3. The defendant sought by the witness, Lucy Washington, to prove isolated and particular acts of violence, as tending to show that the deceased was a turbulent and bloodthirsty man. Evidence of the turbulent, bloodthirsty, and dangerous character of the deceased is admissible, where there is testimony tending to establish that the accused acted in self-defense, where some overt act on the part of the deceased is shown, calculated to impress the slayer with the reasonable belief that he was in danger of grievous bodily harm or death, and that there was no reasonable mode of escape. This evidence is for the purpose of determining who was the aggressor. In the absence of such overt act on the part of the deceased, his character for violence and turbulence is not relevant. In Green v. State, 143 Ala. 2, 39 So. 362, the foregoing rule was announced; that decision overruling the contrary doctrine of the case of Fields v. State, 47 Ala. 603, 11 Am.Rep. 771. Watson v. State,

181 Ala. 53, 61 So. 334; Perry v. State, 94 Ala. 25, 30, 10 So. 650; Roberts v. State, 68 Ala. 156; 1 Jones on Ev. § 156.

Testimony showing the violent character of the deceased, on the issue of self-defense, is relevant for the purpose of throwing light upon the killing, the demeanor of the respective parties, and the just apprehension of the accused. Green v. State, supra; Perry v. State, supra; Roberts v. State, supra; Storey v. State, 71 Ala. 329; Eiland v. State, 52 Ala. 323; Bowles v. State, 58 Ala. 335; Pritchett v. State, 22 Ala. 39, 58 Am.Dec. 250; Quesenberry v. State, 3 Stew. & P. 314; Barlew v. State, 5 Ala.App. 294, 57 So. 601.

The turbulent and bloodthirsty character of the deceased, however, cannot be established by particular acts of violence or turbulence or bloodthirstiness on his part. The questions propounded to the witness, to which objections were sustained by the court--whether witness "did not know that the deceased had cut or shot a man in Bessemer," and that deceased had been in trouble on account of "having cut or shot at more than one person in Bessemer"--were improper. Sorrelle v. Craig, 9 Ala. 534; Nugent v. State, 18 Ala. 521; Pritchett v. State, 22 Ala. 39, 58 Am.Dec. 250; Franklin v. State, 29 Ala. 14; Dupree v. State, 33 Ala. 380, 73 Am.Dec. 422; Jones v. State, 76 Ala. 8; Jackson v. State, 78 Ala. 471; Steele v. State, 83 Ala. 20, 3 So. 547; Bluett v. State, 151 Ala. 41, 44 So. 84; Jackson v. State, supra; Montgomery v. State, 2 Ala.App. 25, 56 So. 92; 1 Greenl.Ev. (14th Ed.) § 55; 7 Mayf.Dig. 341, 342; Bish. New Cr.Prac. 1113, 1114.

A witness may give his opinion of the character of the deceased for peace and quiet, or for turbulence and violence, if he knew that character, where it appears to be based in part upon the estimate of such character in decedent's neighborhood. Roberson v. State, 175 Ala. 15, 57 So. 829; Dave v. State, 22 Ala. 23; Hadjo v. Gooden, 13 Ala. 718. One may form an opinion of the character of another without hearing specific discussion or opinion of that character.

4. The defendant, having put her character in issue, sought to prove that, since she was confined in jail for the murder of the deceased, Will Smith, her character had been good, and she had been made a trusty by the jailer. This testimony was properly excluded. Such evidence of the character of the defendant must be confined to the time of, and anterior to, the alleged commission of the offense for which he is being tried. Testimony touching reputation founded on an opinion expressed post litem motam is inadmissible. The court properly refused to allow defendant's counsel to show what the character of the defendant was since she was incarcerated in jail on this charge of murder. Brown v. State, 46 Ala. 175; Griffith v. State, 90 Ala. 583, 8 So. 812; White v. State, 111 Ala. 92, 21 So. 330; Smith v. State, 118 Ala. 117, 24 So. 55; Gordon v. State, 140 Ala. 29, 36 So. 1009; Ragland v. Smith, 178 Ala. 59, 59 So. 637; Foreman v. State, 190 Ala. 22, 67 So. 583; Robinson v. State, 5 Ala.App. 45, 59 So. 321; McGuire v. State, 2 Ala.App. 131, 57 So. 51; 1 Stark. on Ev. 319; 7 Mayf.Dig. 340; Underhill on Cr.Ev. (2d Ed.) § 83. Evidence of defendant's good character while confined in jail under the charge for which he was being tried, was held not admissible in White v. State, supra; Hill v. State, 37 Tex.Cr.R. 415, 35 S.W. 660; 16 Cyc. 1278(B); Robinson v. State, 5 Ala.App. 45, 59 So. 321.

In Mitchell v. State (App.) 70 So. 991, Judge Brown correctly states the rule for the introduction of evidence of the good character of the defendant as follows:

"The character of the accused in this respect can be made an issue only by the accused offering proof of his good character, and when he does, the state may offer countervailing evidence of his general bad character in the respect in which it has been made an issue (Smith v. State, supra), or may, on the cross-examination of the defendant's witness, show reports or rumors current in the community of defendant's residence before the alleged criminal act under investigation derogatory to his good character in the respect he has put it in issue, for the purpose of showing that the witness was mistaken in his estimate of defendant's character. *** What we have said above applies only to character evidence admissible as exculpatory evidence. If the accused testifies as a witness, the credibility of his testimony may be impeached, like any other witness, by showing his general bad character; but in cases where the character of the accused in both respects is made an issue, to avoid impinging the principles above stated, the impeaching evidence, when requested by the accused, should be limited by the court to the purpose of impeaching the credibility of the witness. McGuire v. State, 2 Ala.App. 219, 57 So. 57; Byers v. State, 105 Ala.

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