Thomas v. State

• Decision Date: 19 April 1960
• Docket Number: 8 Div. 576
• Citation: 41 Ala.App. 19,122 So.2d 731
• Parties: Thomas THOMAS, Jr. v. STATE.
• Court: Alabama Court of Appeals

Page 731

122 So.2d 731

41 Ala.App. 19

Thomas THOMAS, Jr. v. STATE.

8 Div. 576.

Court of Appeals of Alabama.

April 19, 1960.

Rehearing Denied May 24, 1960.

Rowan S. Bone and Hinton & Torbert, Gadsden, for appellant.

MacDonald Gallion, Atty. Gen., and Jos. D. Phelps, Asst. Atty. Gen., for the State.

HARWOOD, Presiding Judge.

Under an indictment charging murder in the first degree this appellant has been adjudged guilty of manslaughter in the first degree and sentenced to the penitentiary for a term of three years.

The evidence presented by the State tends to show that a discussion took place between the appellant and the deceased as to whether the deceased had backed his automobile into the appellant's parked car; when deceased denied he had hit appellant's car the appellant called him a damned liar, and told him he had.

At this juncture appellant shot the deceased with a pistol, inflicting a wound from which deceased died in a few hours.

The evidence presented by the defense was to the effect that the deceased backed his automobile into appellant's parked automobile, and was about to drive away when appellant called to him to stop.

Both men got out of their automobiles and approached each other. According to several of the defense witnesses the deceased asked appellant if he knew who he was stopping, and informed the appellant that he (deceased) was the 'baddest s_____ o_____ b_____ in Huntsville.' The appellant thereupon said he would call the police to settle the matter and started walking away. When he had proceeded a few steps one of appellant's companions called to him to 'look out.' Appellant wheeled around and saw the deceased bearing down on him with his hand in his pocket. Appellant pulled his pistol and shot deceased when he was two or three feet away.

During his direct examination, the appellant was asked by his attorney:

'Q. So you were scared, weren't you, Tommy?'

The State's objection to this question was sustained.

Appellant's counsel argues that under the doctrine of Scott v. State, 249 Ala. 304, 30 So.2d 689, the ruling in the above instance constituted error, and should cause a reversal of this judgment.

We pretermit consideration of appellant's contentions for the reason that the record shows the following question and answer almost immediately prior to the ruling complained of:

'Q. Tommy, when this man got out of the automobile, and you looked at the size of him and you heard him cursing you and abusing you and telling you how tough he was were you afraid or were you not? A. Yes, Sir, I was really afraid.'

It is obvious that the appellant hed already abundantly shown his emotional state as to fear by the above excerpt, and no injury probably injurious to any substantial right of the appellant resulted from the ruling. Sup.Ct.Rule 45, Code 1940, Tit. 7 Appendix.

In the trial below the appellant presented three witnesses to affirm his good reputation and his good reputation for peace and quietude. The first such witness was Simmy Goggans.

Goggans on direct examination testified he had known the appellant some twenty-two years, and knew appellant's reputation in the community in which he lived and that his reputation was good, and further that appellant's reputation for peace and quietude was good.

On cross-examination the witness Goggans testified as follows:

'Q. Now, his reputation that you testified to as being good, is that because you have known yourself? A. Well, not altogether. I never have known of him getting into anything.

'Q. Have you heard people talk about him, or is it what you know personally? A. What I know personally.

'Q. Based on your personal observations of him is what you are testifying about? A. That's all, personal.'

On re-direct examination the witness testified he had never heard any 'bad talk' concerning the appellant.

On re-cross the witness stated he was basing his opinion on what he knew rather than on what people said.

On motion of the solicitor the court excluded Goggans' testimony and instructed the jury to forget they ever heard it.

Counsel for appellant argue strenuously that this exclusion of Goggans' testimony constituted reversible error in that, despite the equivocation resulting from his statements on cross-examination that he was basing his opinion on what he knew personally, witness had known appellant for a long number of years and had never heard anything derogatory concerning him, and such negative proof was sufficient to support his testimony as to appellant's good character.

In Glover v. State, 200 Ala. 384, 76 So. 300, 301, a witness for the State testified he had known the deceased for a long time and that he was not considered a blood-thirsty or dangerous person.

On cross-examination this witness testified that he was basing his answer on his own opinion, and not on what people said.

The court overruled the defense motion to exclude the testimony of this witness.

In approving this ruling, our Supreme Court, per Sayre, J., wrote:

'To say that the witness has never heard anything against the character of the individual whose character is properly under inquiry is negative in form, but often more satisfactory than evidence of a positive sort. Hussey v. State, 87 Ala. 121, 6 South. 420. The witness in the case before us was qualified by his acquaintance with deceased and his residence in the community to speak of the character of deceased, and on his direct examination he did so speak. We are not of the opinion that the court's ruling against the motion to exclude should be held for error on the strength of the witness' subsequent ambiguous statement that his answer was based on his own opinion. In a very correct sense, as we have indicated, the witness could only testify to his own opinion; i. e., his opinion as to the general opinion of the community. That he did not base his opinion on that people said was not necessarily fatal to his competency as a witness, for, properly enough, his opinion may have been based on the fact that people said nothing; and his subsequent further cross-examination tended to establish this as the foundation of his opinion. We are of the opinion that the whole testimony was properly submitted to the jury for their consideration * * *'

It is to be noted that in the Glover case, supra, the court was considering testimony relative to the character of a deceased, rather than testimony relative to the character of a defendant wherein the limitation as to the time covered by the testimony is of importance

When a defendant places his general reputation, or his reputation for peace and quietude in issue, whether the defendant has testified or not, such must be limited to the time preceding the offense. Williams v. State, 250 Ala. 549, 35 So.2d 567; Jenkins v. State, 212 Ala. 484, 103 So. 458; Forman v. State, 190 Ala. 22, 67 So. 583.

When a defendant has testified, and the State seeks to impeach by evidence tending to show his bad general character, and his bad character for truth, then such impeaching testimony may extend up to the time of trial, rather than only to the time of the offense. Dodd v. State, 32 Ala.App. 504, 27 So.2d 259; Smith v. State, 197 Ala. 193, 72 So. 316. In rebuttal to such impeaching evidence a defendant may then offer character evidence extending up to the time of trial. Smith v. State, supra.

If a defendant has testified but has not otherwise put his character in evidence, then the State may offer evidence of his general bad character, but only as affecting his credibility as a witness, and in such circumstances it is error if the trial court does not so limit such evidence upon request of the defendant. Boyette v. State, 215 Ala. 472, 110 So. 812.

Under the above principles relating to character evidence, the evidence offered by the appellant to affirm his good character in general, and as to peacableness, should have been limited to the time preceding the commission of the offense, and when not so limited, the evidence was properly excluded. Williams v. State, 33 Ala.App. 304, 35 So.2d 562. Nor will the fact that the solicitor's motion to exclude was based on other grounds affect the validity of the court's ruling since a correct ruling will not be disturbed because of insufficient or wrong reasons therefor. Vol. 2A, Ala.Dig., Appeal and Error k854(2) for...