Tittle v. State
| Decision Date | 19 October 1916 |
| Docket Number | 6 Div. 50 |
| Citation | 73 So. 142,15 Ala.App. 306 |
| Parties | TITTLE v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Fayette County; Bernard Harwood, Judge.
Kelley Tittle was convicted of manslaughter, and he appeals. Reversed and remanded.
W.B Oliver, of Tuscaloosa, and Beasley & Wright, of Fayette, for appellant.
W.L Martin, Atty. Gen., and H.G. Davis, Asst. Atty. Gen., for the State.
Appellant was indicted and convicted of manslaughter in the first degree. Numerous exceptions were reserved to the testimony.
The trial court was not in error in sustaining the objection to the general question asked witness H.C. Whitley, upon cross-examination, if he had not previously made a different statement about the matter under inquiry. It is elementary that a predicate be first laid, directing the mind of the witness to the time, place, and person involved in the contradictory matter inquired of, so that the witness be apprised with reasonable certainty of the occasion and matter in question, before he can be impeached. Livingston v State, 7 Ala.App. 43, 49, 61 So. 54; Southern Ry. Co. v. Williams, 21 So. 328, 113 Ala. 620. Whether the aforementioned witness had, on the day of the killing, bought two gallons of whisky, of which one gallon belonged to deceased, was immaterial, and did not tend to prove the intoxication of deceased at the time of the difficulty. Gregory v. State, 140 Ala. 16, 37 So. 259. Indeed, the intoxication of deceased was not a material inquiry until the evidence tended to establish self-defense. Harrell's Case, 166 Ala. 14, 52 So. 345; Gregory's Case, 140 Ala. 16, 27, 37 So. 259. That defendant's sister was crying while the fight was going on was immaterial. Conceding that incident to be a part of the res gestae, defendant was not prejudiced by its exclusion. Even if the exclusion operated against him, the subsequent admission of the same matter without objection in defendant's testimony cured the defect. Cleveland's Case, 86 Ala. 1, 5 So. 426; Tarver's Case, 9 Ala.App. 17, 64 So. 1038; Amos' Case, 96 Ala. 120, 11 So. 424. There was no merit in the exception reserved to the disallowance of the question put to witness Dobbins, "What, if anything, did he [deceased] say?" referring to a conversation of the witness and one Walter Johnson with deceased on the day of the killing.
Parham v. State, 147 Ala. 57.
The offer of Columbus Whitley, a brother of deceased, to purchase a pistol of witness George Hayes, was res inter alios acta, and could only be admissible on the theory of a conspiracy, to be first established to the reasonable satisfaction of the trial judge by prima facie proof of its existence. Williams' Case, 74 Ala. 18; White's Case, 12 Ala.App.
160, 163, 68 So. 521. The record does not disclose proper preliminary proof or predicate for the introduction of declarations or acts of conspirators.
Objection was made by the state and sustained to the following question propounded to witness Marvin Mitchell:
"I will ask you if at the time that fuss was going on in the house where you say Kelley Tittle was struck, or being struck, by Gena [deceased], and you say Whitley's [deceased's] brother Columbus came up with a knife and made a threat against Kelley Tittle, what he said?"
While the fight was in progress, what was said and done by the bystanders was a part of the res gestae; but the question does not apprise the court of the materiality of the answer expected, nor was the court apprised of this fact by counsel.
The question propounded to the same witness inquiring, "Did you hear Roscoe make any threats or say anything as he was going up there?" was proper--counsel stating to the court the materiality of the answer expected--and the exclusion of the question was error.
Defendant's written request to charge numbered 1 was properly refused because it singled out and emphasized defendant's testimony, and because it was argumentative. Defendant's request No. 3 was properly refused; it did not correctly hypothesize. One is not justified in taking life because of "the belief that he was in danger of losing his life...
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Collier v. State
...of death or great bodily harm, either real or apparent, must be imminent. Wright v. State, 22 Ala.App. 376, 115 So. 852; Tittle v. State, 15 Ala.App. 306, 73 So. 142. The conduct of the deceased at the time of the shooting and immediately prior thereto probably accounts for the jury's findi......
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Hembree v. State
...in the case in determining whether or not the deceased was drinking or intoxicated at the time of the fatal difficulty. Tittle v. State, 15 Ala. App. 306, 73 So. 142. Miller, a witness for the state, testified that- "He had known defendant about two years, had seen him at different places, ......
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Glass v. State, 4 Div. 543.
... ... a few exceptions to the court's rulings upon the main ... question involved as to the killing of deceased by defendant ... No error appears in any of these rulings. The statement made ... by witness Bunyon White to defendant was clearly admissible ... as being of the res gestae. Tittle v. State, 15 ... Ala.App. 306, 73 So. 142, 145. In said case the court stated: ... "While the fight was in progress, what was said and done ... by the bystanders was a part of the res gestæ." ... On the ... issue presented by the special plea of not guilty by reason ... of insanity, ... ...
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Bynum v. State
...court, prima facie sufficient to establish the existence of such a conspiracy. Smith v. State, 133 Ala. 73, 31 So. 942; Tittle v. State, 15 Ala.App. 306, 73 So. 142. "A conspiracy is rarely proven by positive or direct testimony but usually by circumstances. Durden v. State, 18 Ala.App. 498......