Turner v. State, 7 Div. 756.

• Decision Date: 30 June 1931
• Docket Number: 7 Div. 756.
• Citation: 140 So. 445,25 Ala.App. 21
• Parties: TURNER v. STATE.
• Court: Alabama Court of Appeals

140 So. 445

25 Ala.App. 21

TURNER v. STATE.

7 Div. 756.

Court of Appeals of Alabama

June 30, 1931

Rehearing Denied Aug. 4, 1931.

Affirmed on Mandate Jan. 19, 1932.

Rehearing Denied Feb. 9, 1932.

Appeal from Circuit Court, Shelby County; E. P. Gay, Judge.

James Turner was convicted of murder in the second degree, and he appeals.

Affirmed.

Certiorari granted by Supreme Court in Turner v. State (7 Div 75) 140 So. 447.

Certiorari denied by Supreme Court in Turner v. State (7 Div 121) 140 So. 448.

L. H. Ellis, of Columbiana, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Thos. S. Lawson, Asst. Atty Gen., for the State.

RICE J.

Appellant was indicted for murder in the first degree, the indictment charging, in the proper way, the murder of one Sanford Howell Henderson.

Upon his trial, under the above indictment, he was convicted of the offense of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for the term of fifteen years.

Deceased, who was also known as Boss Henderson, disappeared on the night of November 4, 1928, and his dead body was discovered, late in the following day, a short distance north of Vincent, in Shelby county, about two hundred feet from a seldom used road, with a bullet hole in his head, and also with a bullet hole about the middle of his back. These holes had the appearance of being the result of pistol shot wounds.

On Sunday afternoon or Sunday night, November 4, 1928, said Henderson was drinking and gambling in the woods and fields north of Vincent.

Aside from some slight circumstances, the evidence for the state consisted of that tending to show that Annie Turner, the wife of Clarence Turner, had heard appellant, Cecil Bell, and Clarence Turner plotting or planning to kill the deceased, and of that consisting of the testimony of one F. S. White, to the effect that he was out on that Sunday night, and saw Boss Henderson, appellant, Clarence Turner, and Cecil Bell sitting around a fire near Clarence Turner's home, and that he saw appellant shoot the deceased.

Appellant's testimony denied that he did the shooting; that he was present when it was done; that he had anything to do with it; that he was with Boss Henderson on the Sunday or Sunday night in question; or that he even saw him, etc., that day or night.

The above, while by no means a complete summary of the evidence, and not intended to even approximate such, will, we think, serve to illustrate what we shall have to say hereinafter.

We ought, we believe, to remark that it was shown by the evidence that Cecil Bell, mentioned hereinabove, was the nephew of Dr. A. W. Bell.

It will be observed that the state's testimony tended directly to show a conspiracy between appellant, Clarence Turner, and Cecil Bell, to bring about the murder of Boss Henderson.

There was also evidence tending to show that one or more of the coconspirators said, shortly after the death of said Henderson, words to the effect that "if I (we) get the one hundred and fifty dollars insurance that is coming to us, I don't give a damn what becomes of us."

We find nothing in the testimony, either on behalf of the state or the appellant, tending, even remotely, to connect Dr. A. W. Bell with the conspiracy to bring about the death of Henderson.

If there was any connection between Cecil Bell, his nephew, and Dr. A. W. Bell, of any sort, other than that of the blood relation mentioned, there is no evidence of that fact.

In this state of the record, we are unable to see the relevancy of the testimony of Judge Wilkinson, to the effect that there were certain insurance policies on the life of Boss Henderson, in which Dr. A. W. Bell was named as beneficiary, etc. 30 C.J. 188, § 415; Barry v. State, 37 Tex. Cr. R. 302, 39 S.W. 692.

We pretermit, as being unnecessary in the view we hold, that such testimony was irrelevant, treatment of the question as to whether or not it was necessary to show the loss, etc., of the policies mentioned, or whether such loss, etc., was sufficiently shown to authorize the introduction of parol testimony as to their contents, etc., as not being in violation of the "best evidence" rule, etc.

As we see it, the bare fact that Cecil Bell, alleged to be the coconspirator of appellant, was the "nephew" of Dr. A. W. Bell, did not warrant the introduction of the testimony under consideration, the only effect of which could have been to show a motive on the part of Dr. A. W. Bell to desire the death of Boss Henderson. Without something other being shown by the testimony than the mere fact that one whose motive, if he had any, could be charged to appellant, as Cecil Bell in this case was the "nephew" of the man shown to have such "motive," it seems to us not to follow logically, and hence not legally, that evidence of motive on the part of the uncle could be attributed to the "nephew."

We therefore hold that it was error, and manifestly prejudicial to allow, over...