Thomas v. State, 7 Div. 771.

• Decision Date: 30 June 1931
• Docket Number: 7 Div. 771.
• Citation: 136 So. 419,24 Ala.App. 425
• Parties: THOMAS v. STATE.
• Court: Alabama Court of Appeals

136 So. 419

24 Ala.App. 425

THOMAS v. STATE.

7 Div. 771.

Court of Appeals of Alabama

June 30, 1931

Rehearing Denied Aug. 4, 1931.

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Hansell Thomas was convicted of murder in the second degree, and he appeals.

Affirmed.

Edward Miller, D. C. Byrd, E. G. Pilcher, and E. O. McCord & Son all of Gadsden, for appellant.

Thomas E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst Atty. Gen., for the State.

RICE J.

Appellant a young man, fatherless, not yet 18 years of age, and of good reputation, was, upon a trial under an indictment charging murder in the first degree, convicted of the offense of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for the term of twenty years.

It was admitted by him that he shot, with a shotgun, and killed the deceased, one James Gibbs.

And while he undertook, by his own testimony-there was no other eyewitness than he and deceased-to justify the killing under a claim of self-defense, said testimony easily gave rise to the inference, if it did not show clearly, that he was not so justified.

The exceptions reserved to rulings permitting testimony as to the actions of the widow of deceased, immediately upon, or simultaneously with, the discovery by her of the dead body of her husband lying in the field, where he had been plowing just over the hill from their home, cannot avail for reversal. Supreme Court Rule 45.

While the testimony admitted by said rulings may be technically incompetent, which, though, we do not assert, yet we are unable to see, and unwilling to say, that appellant, who was, at the time of the admission of said evidence, not yet identified as the slayer, was injured by its admission.

The said testimony amounted to no more than that the widow, the witness, upon discovery of the body, etc., ran to it, and picked up the head, etc. There was nothing disclosed by said testimony other than what any normal person would have pictured in his mind as having occurred any way.

And so of the rulings permitting the witness Mrs. Gibbs, the widow of deceased, to testify as to the ages, etc., of her small children, who accompanied her the 150 yards, or such a matter, from her home, over the hill to where the body of her husband lay. It was already in evidence, without objection that she had seven children, some of them small, and the particular testimony objected to seems to us admissible under the principle of res gestæ of the finding, etc., of the body of deceased. At any rate, it was not improper, as bearing upon the question of whether or not there were other competent witnesses to the part of the whole transaction being inquired about. We find an entire absence of any effort to elicit or use said testimony for...