Stephens v. State

• Decision Date: 18 December 1947
• Docket Number: 4 Div. 450.
• Citation: 250 Ala. 123,33 So.2d 245
• Parties: STEPHENS v. STATE.
• Court: Alabama Supreme Court

33 So.2d 245

250 Ala. 123

STEPHENS v. STATE.

4 Div. 450.

Supreme Court of Alabama

December 18, 1947

Rehearing Denied Jan. 22, 1948.

Jas M. Prestwood and A. R. Powell, Jr., both of Andalusia, for appellant.

A A. Carmichael, Atty. Gen., Bernard F. Sykes, Asst. Atty. Gen., and B. W. Simmons, Circuit Sol., of Andalusia, for the State.

LAWSON Justice.

The appellant, Alex Stephens, was indicted for the offense of murder in the first degree by a grand jury of Covington County. Stephens being unable to employ counsel, two practicing attorneys at the bar of said county were appointed by the court to represent him. He pleaded not guilty but upon his trial upon the said indictment he was convicted of murder in the second degree, and his punishment was fixed by the trial jury at imprisonment in the penitentiary of this state for a period of forty years. Judgment and sentence were in accord with the verdict.

The deceased, George Cawley, Sr., was the father-in-law of defendant. There is no dispute in the evidence that Cawley died shortly after a personal encounter with defendant and that the cause of his death was a wound in his chest and heart caused by a sharp instrument which penetrated at least four inches into his body.

The difficulty between the two men took place approximately in front of the home of deceased late in the afternoon of the 5th day of October, 1946.

Several persons who witnessed the encounter testified for the State. Their testimony may be summarized as follows:

Just prior to the difficulty the defendant stopped his small truck in front of the deceased's home. With him were his wife and several of their children. Deceased went up to the truck and sought to get defendant to give the children some money with which to go to a show and to get him to remain with his wife, rather than to spend his money on some other woman. Defendant became angry and cursed deceased, who approached the side of the truck where defendant was seated. Defendant then stood on the running board and as his wife sought to intervene defendant knocked her down. The two men then began to fight. They fell to the ground with the defendant on top of deceased. Defendant then proceeded to stab the deceased with a knife. Cawley died before he reached the hospital. There is no evidence of the deceased being armed with any weapon at the time of the difficulty.

The wife of defendant, who was an eyewitness to the encounter between her husband and father, testified in her husband's behalf. Her version of the difficulty and the events leading up to it were in most material respects in accord with the version related by State witnesses. She testified that just before the fight began she heard her husband tell the deceased not to 'snatch him' but she saw no such overt act on the part of her father.

The other evidence for defendant tended to show that the deceased, while much older than defendant, was considerably taller and heavier; that at the time of the difficulty the defendant was suffering from a severe nerve or muscular ailment which was very painful and caused him to limp but did not affect his arms; that shortly after the difficulty defendant's face was bruised and bloody.

The defendant was not sworn as a witness nor did he take the witness stand. However, during the examination of a defense witness as to the relative size of the deceased and defendant, the defendant stood up in the presence of the jury at the request of his counsel.

The case was for the jury on the evidence adduced, and the affirmative charges requested in writing were refused without error and the motion for new trial was properly overruled in so far as it was predicated on the weight of the evidence. Pattillo v. State, 245 Ala. 192, 16 So.2d 303; Blue v. State, 246 Ala. 73, 19 So.2d 11.

There was no error in permitting the State to show by its own witnesses and by cross-examination of defense witness, Mrs. Alex Stephens, what deceased said to the defendant and what defendant said to the deceased immediately preceding the difficulty. It appears with reasonable certainty that the statements made by the two men at that time were instinctive, voluntary, and spontaneous and were made at a time so near the fatal encounter as to preclude the idea of deliberate design. Such statements tended to show the animus of the parties and to explain their conduct and were properly admitted as part of the res gestae. Wesley v. State, 52 Ala. 182; Fleming v. State, 150 Ala. 19, 43 So. 219; Williams v. State, 147 Ala. 10, 41 So. 992; Ward v. State, 242 Ala. 307, 6 So.2d 394.

A physician whose qualifications as a medical expert were admitted by counsel for defendant examined the body of deceased shortly after his death. As to the nature and character of the wounds which he found on the body of deceased this witness stated: 'He had a stab wound over his heart about an inch and a half or two inches in width that looked like was made with some sharp instrument. It went fairly deep into his heart and blood, of course, was coming from his heart, and had several lacerations around on his face and head and some on his shoulders, just scratches.' It was not error to permit this witness to testify in substance that the instrument would have had to penetrate the body of the deceased approximately four inches to have produced that character of injury to his heart. Pruitt v. State, 232 Ala. 421, 168 So. 149; Clayton v. State, 185 Ala. 13, 64 So. 76; Smith v. State, 165 Ala. 50, 51 So. 610, 611.

Evidently for the purpose of impeaching Miss Wilkerson, who was a witness for the State, counsel for defendant on cross-examination of another State witness asked the following question: 'Didn't you know Mrs. Cawley found that she had sold whiskey and wine?' The trial court correctly sustained the State's objection to the question. Smith v. State, 161 Ala. 94, 49 So. 1029. A mere accusation or suspicion of crime is not admissible as affecting the credibility of a witness even where the crime involves moral turpitude. Horsley v. State, 19 Ala.App. 263, 96 So. 937. The offense of violating prohibition laws does not involve moral turpitude and even a conviction of such offense cannot be shown for impeachment purposes. Grammer v. State, 239 Ala. 633, 196 So. 268.

Shortly after his arrest defendant made the following statement to the arresting officers: 'I'll declare, I didn't go to do it; I just scratched him.' The trial court did not err in permitting the State to make proof of this statement by the defendant, even if considered to be incriminating, a sufficient predicate having been laid previously for its introduction. Ray v. State, 248 Ala. 425, 27 So.2d 872; Tillison v. State, 248 Ala. 199, 27 So.2d 43.

Overruling an objection to a question not answered by the witness, or else favorably answered to the objector, is not prejudicial error. Green v. State, 151 Ala. 14, 44 So. 194, 125 Am.St.Rep., 17, 15 Ann.Cas. 81; Cooper et al. v. Slaughter, 175 Ala. 211, 57 So. 477. Nor can a defendant complain of a ruling by the court refusing to permit a witness to answer a question when the court thereafter permitted the same witness to answer substantially the same question. Johnson v. State, 221 Ala. 632, 130 So. 175. These principles dispose of several of the rulings of the trial court adverse to defendant and to which exceptions were noted.

The defendant introduced in evidence a knife which the arresting officers testified they found on his person at the time of his arrest. On rebuttal the State called the sheriff of the county and asked him to identify two knives and state whether he took them from defendant while he was confined in jail. To this line of questioning the trial court sustained defendant's objection. Whereupon the solicitor stated: 'If he objects, we will withdraw it. The purpose of it is to show there was more than one knife in the possession of the defendant.' Appellant insists that reversible error was thereby committed. There was no request made by the defendant that this remark of the solicitor be excluded from the jury's consideration nor was any ruling of the court invoked thereon. We do not think that the remark of the solicitor was so grossly improper and highly prejudicial as that neither retraction nor rebuke by the trial court would have destroyed its sinister influence. No reversible error is made to appear in this connection. James v. State, 246 Ala. 617, 21 So.2d 847.

Defendant insists that the trial court erred to a reversal in permitting Robert H. Cawley, a son of deceased, to testify for the State on rebuttal, on the ground that the rule had been invoked and that Cawley had been present in the courtroom during the trial. He had not been subpoenaed or sworn as a witness and at the beginning of the trial was not placed under the rule. It is well established in this jurisdiction that matters of this kind are within the discretion of the trial court. Therefore, the ruling permitting Cawley to testify is not subject to revision. State v. Brookshire, 2 Ala. 303; Montgomery v. State, 40 Ala. 684; McGuff v. State, 88 Ala. 147, 7 So. 35, 16 Am.St.Rep. 25; Riley v. State, 88 Ala. 193, 7 So. 149; Beaird v. State, 219 Ala. 46, 121 So. 38; Lakey v. State, 20 Ala.App. 78, 101 So. 537, certiorari denied, 211 Ala. 615, 101 So. 541; Miller v. State, 21 Ala.App. 261, 107 So. 226.

Evidence for the State tended to show that the deceased owned only one knife and that at the time of the difficulty it was in the possession of his son, Robert H. Cawley, in another city. A knife was identified as being the one owned by deceased prior to his death. It was admitted in evidence over defendant's objection. We are unable to see how the knife shed any light upon any material inquiry in the...