Terry v. State

• Decision Date: 23 June 1898
• Citation: 118 Ala. 79,23 So. 776
• Parties: TERRY v. STATE.
• Court: Alabama Supreme Court

23 So. 776

118 Ala. 79

TERRY v. STATE.

Supreme Court of Alabama

June 23, 1898

Appeal from circuit court, Coffee county; J. W. Foster, Judge.

Major Terry was convicted of murder, and appeals.Reversed.

The appellant in this case was indicted, tried and convicted of murder in the first degree and sentenced to be hanged.The facts pertaining to the rulings of the court upon the evidence are sufficiently set forth in the opinion.

The court in its general charge, among other things, instructed the jury as follows: "If the jury had proof of and knew the weapon employed whereby the deceased was killed, then it was necessary to a valid indictment that such weapon be named therein; but if the weapon was unknown to the grand jury such averment was sufficient, even if it could have been ascertained by reasonable diligence."To this portion of the court's general charge the defendant duly excepted and also separately excepted to the court's refusal to give each of the following written charges requested by him (1)"In this case, unless the jury shall believe from the evidence beyond a reasonable doubt that Mary Thomas, the deceased, was killed; that she was killed by striking her with a weapon; that the weapon was to the grand jury unknown and that defendant did the killing, and with malice aforethought, the defendant must be acquitted; and in determining whether the weapon with which the killing was done, if it was done with a weapon, was to the grand jury unknown, they may look to the facts, if they be facts, that there was testimony before the grand jury that she was found dead in a room with a gash or bruise on her head, and that a chair was found in the same room with blood on the post and rounds, and a strand of hair also on it, together with all the other evidence in the case; and if from the whole evidence they fail to believe beyond a reasonable doubt that the grand jury did not know with what weapon she was killed then the verdict must be for the defendant."(2)"If the jury believe the evidence they must acquit the defendant."(3)"In this case the indictment charges that defendant killed Mary Thomas by striking her with some weapon to the grand jury unknown, and if she was killed by a blow with a chair, and if there was before the grand jury evidence which informed them that she was killed by a blow with a chair, then the verdict must be for the defendant."(4)"If the jury believe from the evidence that the deceased, Mrs. Thomas, was known or called by the name 'Van Thomas,' and that she was not known or called by the name 'Mary Thomas,' and that no person known and called by the name 'Mary Thomas' has been killed by the defendant, then the defendant must be acquitted."(5)"The indictment charges the killing of 'Mary Thomas,' and the name of the person alleged to have been killed is material and must be proven as alleged, and if the jury shall fail to believe from the evidence that a person named and known and called by the name of 'Mary Thomas' has been killed by the defendant, then defendant must be acquitted."

Sallie & Kirkland, for appellant.

Wm. C. Fitts, Atty. Gen., and Henry Fitts, for the State.

HARALSON J.

No witness was examined by the state who testified to seeing the commission of the homicide.The evidence against defendant relied on by the state, to show that he was the guilty agent, is circumstantial.As proof tending to show his guilt, the state introduced evidence of a track leading from the scene of the homicide, which it claims was defendant's track.Defendant did not deny that he went to and from the house, and told the way he went and the way he departed.

Treadway for the state swore to the trace of the track from the house where the homicide occurred to the house of defendant.He then testified: "I saw Major [the defendant] make a track and measured the track that he made.The track I saw Major make which I measured, was made by him on the morning that he was arrested, and while on the way from his house to the house of Thomas [the husband of deceased].I also measured the tracks hereinbefore referred to, which I had traced that same morning,-the morning of the killing,-from the Thomas place to the Major Terry place."

The solicitor then asked the witness: "Was the track you saw Major make and measured, and the track you measured going to and coming from Thomas' house, the same?"To this question the defendant objected on grounds in substance that it was not competent for the witness to testify as his conclusion or opinion that the tracks were the same, or made by the same person.The question is not new, but well settled in this court, that the witness should not have been allowed to testify to the identity of the tracks.It was competent for him to testify that he measured the tracks coming and going from the place of the homicide, and compared them with the track made by defendant the next day, and they corresponded in given particulars; but, it was not competent for him to say that the two were the same, nor to give his opinion on the subject at all.He should have stated the facts of identification, and it was for the jury to find, from all the facts deposed to, whether they were defendant's tracks or not.Hodge v. State,97 Ala. 37, 12 So. 164;Riley v. State,88 Ala. 193, 7 So. 149;Gilmore v. State,99 Ala. 154, 13 So. 536;James v. State,104 Ala. 20, 16 So. 94.In the first of the two cases last cited (Gilmore's Case), the decision on the point at issue is correct on the facts of that case.The witness there testified, that the two tracks about which he was testifying, corresponded in length and breadth, and there were no peculiarities about any of the tracks.This court decided that this was competent evidence to go to the jury on the subject of identification.The third headnote is not a correct statement of the point decided, in so far as it is there stated, that "a witness may testify that he measured the two sets of tracks and they were the same."This is an inadvertent statement of the principle actually decided in the case, and is misleading.In the last case above referred to (James' Case), the court allowed the witness to describe the physical peculiarities of the tracks of defendants, which he had frequently seen, and of the tracks at the scene of the crime, which the witness did and nothing more, and to this the defendants objected.This court on appeal, very properly held that the ruling of the court below was...