Terry v. State

• Citation: 13 Ala.App. 115,69 So. 370
• Decision Date: 01 June 1915
• Docket Number: 272
• Parties: TERRY v. STATE.
• Court: Alabama Court of Appeals

69 So. 370

13 Ala.App. 115

TERRY v. STATE.

No. 272

Court of Appeals of Alabama

June 1, 1915

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Payton Terry was convicted of manslaughter in the first degree, and he appeals. Reversed and remanded.

The facts sufficiently appear. In its oral charge to the jury the court says:

"Now as I said in my first instruction to you, the question to you is, What are my convictions, based upon the testimony in the case? Is it my judgment, after weighing and considering all of the testimony in case, that the defendant is guilty? If so, then in law he is guilty, and it would be your duty to return a verdict of guilt. If it is your judgment and your conviction, after weighing and considering all the testimony in the case, and from every standpoint that the defendant is not guilty, then your verdict should be not guilty."

Further charging the jury orally, the court says:

"The burden of proof rests upon the state to satisfy you beyond a reasonable doubt that the defendant is guilty. If it fails to do that, then your verdict will be not guilty. The burden does not rest upon the defendant to prove that he is not guilty. The law presumes every man to be innocent although indicted, until his guilt is proven, and until the testimony introduced for the purpose of making out the charge against the defendant reaches that state that the jury can say beyond a reasonable doubt, 'we are satisfied that the defendant is guilty.' "

The following charges were refused to the defendant:

"(1) Before you can convict the defendant, each of you must be satisfied to a moral certainty, not only that the proof is consistent with defendant's guilt, but that it is wholly inconsistent with every other rational conclusion and unless each of you is so convinced by the evidence of the defendant's guilt that you would each venture to act upon that decision, in a matter of the highest concern and importance to your own interest, you must find the defendant not guilty."

Charges 9 and 10 are similar to charge 1.

"(34) Gentlemen of the jury, you must acquit the defendant, unless the evidence excludes every reasonable supposition but that of his guilt."

"(39) The court charges the jury that unless the evidence of the defendant's guilt is clear, positive, and abiding, fully satisfying their minds and consciences that the defendant is guilty, then they must acquit him."

"(11) Where, in a murder trial, one plausible theory sustained by the evidence tends to show that bystanders killed the deceased, and another tends to show that the defendant did it, and the jury are not able to say which theory is true, they must accept the one favorable to the defendant, and acquit him."

W.L. Lee, of Columbia, and B.G. Farmer, of Dothan, for appellant.

W.L Martin, Atty. Gen., and W.H. Mitchell, Asst. Atty. Gen., for the State.

THOMAS J.

The contention in appellant's brief that the record contains no order of court showing the appointment of the special solicitor who signed the indictment and prosecuted the case is fully met by the return to the writ of certiorari, which sets out such an order that is in all things complete.

The suggestion that the record fails to show that the jury who tried the case were sworn is likewise without merit, as the judgment entry recites:

"Thereupon came a jury of good and lawful men, to wit, A.F. Sinquefield, foreman, and 11 others, who upon their oaths say: 'We, the jury, find the defendant guilty of manslaughter in the first degree,' " etc.

In the absence of any disclosure in the record that an objection was taken in the court below during the progress of the trial to the insufficiency of the oath that was so administered to the jury, it will be presumed on appeal, when the record, as here, shows nothing to the contrary, that the correct oath was administered. Code, § 7274; Allen's Case, 71 Ala. 6; Storey's Case, 71 Ala. 335.

The failure of the court to interrogate the jury on the voir dire examination as to whether they, or any member, had a "fixed opinion against capital or penitentiary punishment, or thought that a conviction should not be had on circumstantial evidence," was not prejudicial to the defendant, and furnishes him no ground for complaint, since the unfavorable attitude of the jury on either of these matters would afford cause of challenge to the state only, and not to the defendant, and which the state might waive. Code,§ 7278; Wesley v. State, 61 Ala. 282; Harrison v. State, 79 Ala. 29; Thayer v. State, 138 Ala. 49, 35 South 406.

The evidence was in conflict as to whether the defendant, or some other person, inflicted the knife wounds on deceased from which he died, the difficulty, in which several were engaged and at which others were present, having taken place during a party, and out in the yard in the dark. A circumstance against and unfavorable to the defendant was the fact, if it be a fact, that immediately after the difficulty, in which defendant claimed he took no part, except as a looker-on and attempted peacemaker, he left and returned shortly afterwards in a change of clothes, it appearing from the evidence for the state that defendant did not have on overalls before the difficulty, but that after the difficulty he appeared back at the party in overalls. His change of clothes was admissible, in connection with the other evidence, as affording some basis for an inference that he thereby sought to conceal blood stains which would tend to incriminate him. In this connection, the state asked one of its witnesses, "Did defendant have on overalls when he left?" and the witness replied: "They did not look like overalls." The court committed no error in overruling defendant's objections to the question and answer. The answer falls in the class known as a shorthand rendering of a collective fact. 1 Mayf.Dig. 336, § 27; Perry v. State, 87 Ala. 30, 6 So. 425; S. & N.R.R. Co. v. McLendon, 63 Ala. 266; Watkins v. State, 89 Ala. 82, 8 So. 134; Swain v. State, 8 Ala.App. 26, 62 So. 446; Reeves v. State, 96 Ala. 33, 11 So. 296; Orr v. State, 117 Ala. 69, 23 So. 696; Patton v. State, 156 Ala. 23, 46 So. 862.

The predicate for the dying declarations of deceased was sufficiently laid. The evidence showed that the deceased received on Saturday night the knife wounds from which he died on the following Tuesday; that he stated to his attending physician on Sunday that he "would never get up"--"would never get well"--and later stated to a visiting friend on Monday, before his death on Tuesday following, that he "was going to die." The state then proved that after this last statement, and in response then to an inquiry from said friend as to who cut him, deceased said that it was defendant. We find no merit in any of the objections of defendant to any of this evidence, all of which we think was competent. 1 Mayf.Dig. 285.

Nor was there any error in allowing the attending physician to state, with reference to the appearance of the wounds on deceased, that:

"The knife struck here [indicating by pointing his finger to his own body], and the cut went back in this direction [further indicating on his own body]." Reid v. State, 181 Ala. 14, 61 So. 324; Fuller v. State, 117 Ala. 41, 23 So. 688; Littleton v. State, 128 Ala. 31, 29 So. 390; Walker v. State, 58 Ala. 393; Bennett v. State, 52 Ala. 370; Prince v. State, 100 Ala. 145, 14 So. 409, 46 Am.St.Rep. 28.

While it is permissible for a defendant to adduce evidence tending to show that another person other than himself committed the crime, yet it is not competent to this end to show that such person fled from the community soon after the commission of the crime, or even that such person had confessed or admitted his guilt; since, though flight and confessions or admissions are competent evidence against the party making them, because they are his own acts or declarations and against interest, they are not competent evidence in favor of a third party, being regarded by the law as to him as mere hearsay. Levison v. State, 54 Ala. 520; Owensby v. State, 82 Ala. 63, 2 So. 764; Goodlett v. State, 136 Ala. 43, 33 So. 892; Kemp v. State, 89 Ala. 52, 7 So. 413; Whitaker v. State, 106 Ala. 30, 17 So. 456. The court consequently committed no error in declining to let defendant prove that one Holloway fled from the community immediately after the crime here charged was committed.

The testimony of the state's witness Edmond Whitaker was to the effect that deceased and said Holloway were engaged in a difficulty out in the yard in the dark, where a number of other persons were present; that witness and one Meadows separated the combatants, and that while witness was in the act of pulling deceased further away from Holloway, the defendant (Terry) came out of the house, and, bringing on a difficulty of his own with deceased, then cut him administering the wounds from which he died. Defendant admitted that he came out of the house when he heard the noise of the difficulty, but stated that he did so in order to see what was the matter, and to try and stop the fighting, and that he did not cut the deceased, and took no part in the difficulty whatever, except as an attempted peacemaker, in an effort to separate the several parties then engaged in it. Defendant's counsel asked defendant's witness Dykes, who was present at the time, this question: "Did you see what defendant did when he got out to the boys?" The witness answered: "Yes, sir; all that he done was trying to part them." The court excluded this answer on motion of the state. This action of the court was error, since the answer of the witness was merely the shorthand rendering of a collective fact derived from observation. Reeves v. State, 96 Ala. 40, 11 So. 296; Lewis v. State, ...