Thacker v. State
| Decision Date | 22 October 1931 |
| Docket Number | 6 Div. 998. |
| Citation | 225 Ala. 1,142 So. 580 |
| Parties | THACKER v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied Dec. 3, 1931.
Certiorari to Court of Appeals.
Isom Thacker was convicted of murder in the second degree and appealed to the Court of Appeals. The judgment of conviction being there reversed, the State, by and through its Attorney General, applies for certiorari to the Court of Appeals to review and revise its said judgment and decision in the case styled Isom Thacker v. State, 142 So. 579.
Writ awarded; reversed and remanded.
Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.
L. D. Gray, of Jasper, for respondent.
Charge B, the giving of which was held by the Court of Appeals to be reversible error, has been in effect held by this court not to be an incorrect statement of the law and not reversible error to give it. Tatum v. State, 131 Ala. 32, 31 So. 369; Crittenden v. State, 134 Ala. 145, 32 So. 273; Jones v. State, 176 Ala. 20, 24, 58 So. 250; Porter v. State, 55 Ala. 95.
Likewise charge C has been approved by this court and the Court of Appeals. Jackson v. State, 117 Ala. 155, 23 So. 47; Kilgore v. State, 74 Ala. 1; Porter v. State, 55 Ala. 95, 107; Wray v. State, 2 Ala. App. 140, 57 So. 144; Wiley v. State, 10 Ala. App. 249, 65 So. 204; Threet v. State, 18 Ala. App. 342, 91 So. 890. The subject has also been treated to the same effect in a note in 14 A. L. R. 1439.
The charge in State v. Tobe Johnson, 24 Ala. App. 291, 135 So. 592, 593, is not, we think, the same in effect as charges B and C on this appeal. It is said in that case that a charge is not correct which asserts that evidence of an alibi should be considered with great caution, for that it is so easily manufactured. This does not, in our opinion, conflict with what has been said respecting charges B and C in the cases cited above. We cannot, therefore, agree with the Court of Appeals that the giving of either of them was erroneous to reversal.
The statement by the witness Willingham that the shots "sounded like a rifle" would undoubtedly be free from objection, unless the witness disqualified himself to make such a statement. Fowler v. State, 8 Ala. App. 168, 63 So. 40; Louisville & N. R. Co. v. Hayward, 201 Ala. 9, 75 So. 22; Hunter v. State, 20 Ala. App. 152, 101 So. 100; Noel v. State, 161 Ala. 25, 49 So. 824; Suttle v. State, 18 Ala. App. 411, 92 So. 531; Rowlan v. State, 14 Ala. App. 17, 70 So. 953; Mayberry v. State, 107 Ala. 64, 18 So. 219.
The Court of Appeals held that the statement of the witness, in effect, that he could not say that he knew the difference between a rifle shot and a pistol shot, disqualified him from expressing a description of the shots, that they sounded like (those of) a rifle.
Our judgment is that the fact that the witness states that he could not say that he knew (that is, we suppose, under all circumstances) the difference in the sound of rifle and pistol shots, does not show that the circuit court was wrong in its ruling that the witness may thus describe them to the jury on the occasion in question. The evidence so given is said to be a description of the sound and not an objectionable opinion.
In the Fowler Case, supra, there was no preliminary evidence mentioned in the report of it as to the knowledge of the witness as to such matters. In the absence of evidence to the contrary, the court...
To continue reading
Request your trial
-
Kuenzel v. State
...consider this as a circumstance against the defendant, in connection with all of the other evidence in the case." In Thacker v. State, 225 Ala. 1, 2, 142 So. 580, 581 (1932), the following jury charges were "I charge you, ... that if after a consideration of all the evidence in this case, i......
-
Alabama Power Co. v. Jackson
...Coach Line, Inc., v. McCarroll, 227 Ala. 686, 151 So. 834, 92 A.L.R. 470; Houston v. State, 227 Ala. 172, 148 So. 863; Thacker v. State, 225 Ala. 1, 142 So. 580; Orr v. State, 225 Ala. 642, 144 So. 867; Pacific Stages, Inc., v. Yandle, 224 Ala. 481, 140 So. 603; Louisville & N.R. Co. v. Ste......
-
State v. Johnson
... ... There is no apparent difference between a “strong circumstance against the defendant,” as stated in the instruction in the Williams case, and a “discrediting circumstance,” as stated in this case ... In the case of Thacker v. State, 25 Ala. App. 163, 142 So. 579, instructions similar to those given in the Tatum case and in the Williams case were considered by the Alabama Court of Appeals. That court held on authority of Tobe Johnson v. State, 24 Ala. App. 291, 135 So. 592, that both forms of instruction were ... ...
-
State v. Johnson
... ... Thacker v. State, 25 Ala.App. 163, 142 So. 579, ... instructions similar to those given in the Tatum case and in ... the Williams case were considered by the Alabama Court of ... Appeals. That court held on authority of Tobe Johnson v ... State, 24 Ala.App. 291, 135 So. 592, that both forms of ... ...