Thornton v. State

• Decision Date: 24 January 1897
• Citation: 21 So. 356,113 Ala. 43
• Parties: THORNTON v. STATE. [1]
• Court: Alabama Supreme Court

21 So. 356

113 Ala. 43

THORNTON v. STATE. ^[1]

Supreme Court of Alabama

January 24, 1897

Appeal from circuit court, Butler county; W. D. Denson, Judge.

Elias Thornton was convicted of murder, and appeals. Affirmed.

The appellant, Elias Thornton, was indicted, tried and convicted of murder in the first degree, and sentenced to the penitentiary for life. The facts pertaining to the rulings of the court upon the evidence, to which exceptions were reserved, are sufficiently stated in the opinion, and it is deemed unnecessary to state the evidence at length. The testimony for the state tending to show that the defendant was guilty as charged in the indictment was circumstantial. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "Circumstantial evidence should be just as clear and convincing as where the facts are testified to by eyewitnesses, and in this case should be so clear and convincing as to lead your minds to the conclusion that the defendant is guilty beyond a reasonable doubt." (3) "The defendant is presumed to be innocent until his guilt is established, and the evidence sufficient to convict should be so clear and convincing as to lead your minds to the conclusion that the accused cannot be guiltless." (5) "If from the evidence you have reason to doubt the defendant's guilt you should acquit the defendant." (13) "The defendant has the right to offer evidence of his previous good character not only where a doubt exists on the other proof, but even to generate a doubt as to his guilt." After the consideration of the cause, the jury returned the following verdict: "We the jury find the defendant guilty of murder in the first degree, and fix penalty, a lifetime sentence in the penitentiary;" and upon this verdict judgment was rendered, sentencing the defendant to the penitentiary for life.

D. M Powell, for appellant.

Wm. C Fitts, Atty. Gen., for the State.

HARALSON J.

1. Bargaineer, the sheriff, testified, that as he was going out to the place where Williams was killed, the day following the night he was killed, he met defendant and another negro inside the corporate limits of Greenville, and that defendant looked frightened when he saw him. To this last expression, which is italicized, the defendant objected and excepted to the ruling of the court in admitting it. Such expressions as "she appeared to be healthy" "the accused appeared to be mad"; that a person "was sick, had fever, or was pregnant"; "plaintiff seemed to be suffering"; "she was not able to return home"; "she looked bad and the left wrist of plaintiff looked like the bone had slipped off the joint"; "that the pieces of jugs found in the débris of the burned gin house looked like they had been burned," and such like expressions, have been held to be admissible as statements of what are called "collective facts." Railroad Co. v. McLendon, 63 Ala. 266, 275; Carney v. State, 79 Ala. 14, 17; Jenkins v. State, 82 Ala. 28, 2 So. 150; James v. State, 104 Ala. 20, 16 So. 94; Miller v. State (Ala.) 19 So. 37. The principle upon which such opinions are admissible as evidence is very fully stated in Carney v. State, supra, as follows: "Human emotions and human passions are not, in themselves, physical entities, susceptible of proof, as such. Like the atmosphere, the wind, and some acknowledged forces of nature, they are seen only in the effects they produce. Pleasure, pain, joy, sorrow, peace, restlessness, happiness, misery, friendship, enmity, anger, are of this class. So, tenderness, sympathy, rudeness, harshness, contempt, disgust, the outcrop of emotional status, cannot, in their constitution, be made so far physical facts or entities, as to become the subject of intelligent word description. They are proved by what is called 'opinion evidence.' Not the mere unreasoning opinion, or arbitrary conclusion of the witness, but his opinion based on experience and observation of the conduct, conversation and facial expression of others, in similar emotional conditions. Facial expressions and vocal intonation are so legible, as that brutes comprehend them; and yet human language has no terms by which they can be dissected, and explained in detail," etc. Again, as to the admissibility of such evidence, Mr. Wharton says: "The true line of distinction is this: An inference necessarily involving certain facts may be stated without the facts, the inference being an equivalent of a specification of the facts," or a shorthand rendering of them, subject to cross-examination as to the facts on which the inference is based. 1 Whart. Ev. § 510, and authorities cited. In McAdory v. State, 59 Ala. 92, it was held that a witness should not be allowed to say, the prisoner "looked downcast"; in Gassenheimer v. State, 52 Ala. 313, that it was error to allow a witness to state that the prisoner "looked excited," and in Johnson v. State, 17 Ala. 618, it was held to be error to allow a...