Thomas v. State
| Decision Date | 17 May 1898 |
| Parties | THOMAS v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Conecuh county; John R. Tyson, Judge.
John Thomas was convicted of assault and battery, and appeals. Reversed.
The appellant was indicted, tried, and convicted for an assault and battery upon one Henry Hunter. Upon the trial of the cause, as is shown by the bill of exceptions, the state introduced Henry Hunter as a witness, who testified that on the night he was assaulted and beaten he went into a restaurant kept by one Rogers for the purpose of getting his sisters, who were there; that the defendant and others were in the restaurant at the time; that he got his sisters out of the restaurant, and sent them home, and while he was standing in the street, five or six feet from the door of the restaurant, the defendant came out of the restaurant with a billiard cue, and struck him in the mouth. On the cross-examination of this witness the defendant asked him the following question: "Did you tell your sisters Estelle and Bessie at your father's house, where you all live the same night you got the blow, and an hour after it was struck, that you did not know who it was that struck you?" To this question the witness answered that he did not. On redirect examination this witness testified that Virginia Hunter was his youngest sister, and that he went to the restaurant that night to get her (Virginia) to come out of the restaurant, and to come home. The state then asked the witness the following question: "Did not the defendant very soon after he struck you, marry your sister Virginia?" To this question the defendant objected, on the ground that it was incompetent, and called for irrelevant and immaterial evidence. The court overruled the objection and the defendant duly excepted. Upon the witness replying that he did, the defendant moved the court to exclude the answer, upon the ground that it was incompetent, irrelevant and immaterial testimony. The court overruled the objection, and the defendant duly excepted. The testimony for the defendant tended to show that he was not the person who struck Henry Hunter. Estelle Hunter was introduced as a witness for the defendant, and after she had testified that she was the sister of Henry Hunter, and was at her father's house when he came there shortly after he was struck, the defendant asked the witness the following question: "Did not Henry Hunter tell you at your father's house, where you all live, the same night he was struck, and about an hour after he was hit, that he did not know who hit him?" Upon this witness answering that he did not, the defendant then asked the witness if she did not tell the father of the defendant that morning, at her father's house, before the trial, that she would swear that her brother Henry Hunter came home soon after he was struck that night, and told her that he did not know who it was that hit him. The state objected to this question, on the ground that the defendant could not impeach his own witness. The defendant's counsel stated to the court that he was taken by surprise by the answer of the witness, as she had made the statement which she was asked about that morning, at her father's house. The court refused to allow the question to be answered, and sustained the objection of the state. To this ruling the defendant duly excepted. These facts present the only rulings of the trial court to which exceptions were reserved.
John D. Burnett, for appellant.
Wm. C. Fitts, Atty. Gen., for the State.
The fact that the defendant, very soon after the assault he is charged with having made upon Hunter, married Hunter's sister Virginia, was competent to go to the jury as tending to show motive for the assault, in connection with the fact that Hunter immediately preceding the assault had taken her away from Rogers' restaurant, where defendant also was.
The court erred in refusing to allow defendant to ask the witness Estelle Hunter whether she had not told the father of the defendant, the morning of the trial, at her father's house, that she would swear "that her brother Henry Hunter came home soon after h...
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