Thompson v. State
| Decision Date | 19 August 1958 |
| Docket Number | 5 Div. 519 |
| Citation | 105 So.2d 146,39 Ala.App. 569 |
| Parties | James THOMPSON v. STATE. |
| Court | Alabama Court of Appeals |
Wilbanks & Wilbanks, Alexander City, for appellant.
John Patterson, Atty. Gen., and Geo. Young, Asst. Atty. Gen., for State.
Thompson was indicted for murder in the first degree for killing Jack Strong with a shotgun. The jury found him guilty of manslaughter in the first degree and fixed his punishment at eight years' imprisonment in the penitentiary.
Thompson had been at the home of deceased at one time during the evening of the killing, was stabbed by one Brad Henry, and had returned for revenge. Thompson kicked open Strong's door, and after being told Henry had gone, he shot Strong.
On cross-examination, Strong's wife stated that in her opinion the shooting was accidental. The prosecutor claimed surprise and then cross-examined his witness on that ground, attempting to show that she testified as she did in order to collect certain insurance carried on her husband's life. The witness denied that.
On cross-examination by the defendant, it was shown that she had informed the prosecutor on two previous occasions that her testimony would be as it developed, i. e., that the shooting was accidental. The trial judge then stopped the questioning, saying that the State could not cross-examine its own witness on the ground of surprise after it had been shown that there was no genuine surprise. He added that he had allowed such cross-examination previously because it had come in without objection.
During Strong's wife's testimony, the State introduced in evidence a photograph (Exhibit No. 3) which showed the dead body as it lay in the room where the shooting took place. She identified the picture as truly representing Strong 'as he lay, as he fell when he was shot.' Pointing to a black and white object next to Strong's body, the solicitor asked:
'Mr. Wilbanks: Reserve an exception.
'
While the ownership of the toy would ordinarily be immaterial, nevertheless, since the testimony established without contradiction that Strong's two little children were in the house at the time of the killing, the identification of the teddy bear was but part of the witness' describing the scene. That it incidentally might convey to the imagination of the jury the child's loss of its father, was but a consequence possible whenever a parent dies. Logan v. State, 251 Ala. 441, 37 So.2d 753.
The State's other witnesses were supportive of the foregoing resume.
Appellant called seven character witnesses and rested.
The prosecutor asked one of the character witnesses, 'If you know he spent his time in the neighborhood and visited and consorted with colored people would you still say he was a man of good reputation?' Appellant's counsel moved 'that type question be excluded.' The court granted the motion. Aside from the racial aspect, the question was not apt under the rule of Mullins v. State, 31 Ala.App. 571, 19 So.2d 845, as being based on a course of behavior rather than the impact of it on the community.
Ordinarily, improper questions not answered are harmless. Haney v. State, 20 Ala.App. 236, 101 So. 533; Moore v. State, 16 Ala.App. 503, 79 So. 201. No mistrial was requested nor was this question made a ground for new trial.
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Mitchell v. State
...a photograph is not inadmissible merely because it can inflame. Wilson v. State, 31 Ala.App. 21, 11 So.2d 563; Thompson v. State, 39 Ala.App. 569, 105 So.2d 146; May v. State, 42 Ala.App. 401, 166 So.2d 860; Grissett v. State, 241 Ala. 343, 2 So.2d 399; Duncan v. State, 278 Ala. 145, 176 So......
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Houston v. State, 6 Div. 175
...others, unequivocally assert that a character witness's personal definition of 'good reputation' is immaterial. See Thompson v. State, 39 Ala.App. 569, 105 So.2d 146, and Wright v. State, 32 Ala.App. 169, 23 So.2d 517, cert. denied247 Ala. 180, 23 So.2d 519, for other examples of this type ......
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Packer v. State, 1 Div. 511
...which we do not assume, the ruling overruling the objection was harmless. Embrey v. State, 283 Ala. 110, 214 So.2d 567; Thompson v. State, 39 Ala.App. 569, 105 So.2d 146. The indictment charged the appellant with the larceny of three dresses which belonged to Mrs. Hall. Those dresses were f......
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Hooper v. State
...others, unequivocally assert that a character witness's personal definition of 'good reputation' is immaterial. See Thompson v. State, 39 Ala.App. 569, 105 So.2d 146 (1958) and Wright v. State, 32 Ala.App. 169, 23 So.2d 517, cert. denied, 247 Ala. 180, 23 So.2d 519 (1945), for other example......