Walling v. State
| Decision Date | 28 November 1916 |
| Docket Number | 4 Div. 423 |
| Citation | 15 Ala.App. 275,73 So. 216 |
| Parties | WALLING v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Dec. 19, 1916
Appeal from Circuit Court, Elba County; A.B. Foster, Judge.
William T. Walling was convicted of murder in the second degree, and he appeals. Affirmed.
H.L Martin, of Ozark, and J.A. Carnley, M.A. Owen, Kyle B. Price and M.S. Carmichael, all of Elba, for appellant.
W.L Martin, Atty. Gen., and H.G. Davis, Asst. Atty. Gen., for the State.
The defendant, William T. Walling, was charged with killing one Jim Sexton; the indictment was for murder in the second degree. The defendant was found guilty and sentenced to ten years' imprisonment in the penitentiary.
The testimony set out in the transcript is voluminous, and much of it but a repetition; many of the witnesses being examined several times regarding the same matters. For the purposes of a proper understanding of the rulings of the trial court to be passed upon here a short synopsis of the evidence will suffice.
The deceased, who was unknown to, or not recognized by, the defendant or other members of his family, passed the home of the defendant on a certain night, with his son, cursing and shooting; the defendant's evidence supporting the contention that these parties were shooting into his house. The defendant, his wife and stepdaughter, returned the fire, and a skirmish took place between the parties in which many shots were fired. The son of the deceased, as a witness in behalf of the state, testified that after this first round of shooting, he took his father's pistol from him, and that deceased (his father) started home, but that he became exhausted on account of a trouble with his heart, and that he left deceased on the roadside and went home to get a wagon in which to carry him home. After the first shooting, which did not result in any one being shot, the defendant and his stepdaughter ran down from the house into the pasture towards and near to the road in the direction in which the deceased and his son had gone. It was defendant's contention that this was for the purpose of finding out and identifying the parties, while it was the state's theory that it was for the purpose of pursuit and continuing the difficulty. The defendant and his stepdaughter, being unable to locate the parties, returned and went to the houses of some of the neighbors to replenish their supply of ammunition. When returning home, after procuring the ammunition, they encountered the deceased and the difficulty ensued, resulting in the shooting to death of Sexton, the deceased. The evidence is in conflict as to the position of the parties and their actions just prior to and at the time of this fatal shooting. The defendant's contention (supported by some of the evidence) was that he, his wife, and stepdaughter, were all on the porch of his home at the time the fatal shooting took place, and that the deceased was advancing towards his house cursing, threatening, and shooting. The evidence of the state tended to show that at the time of the fatal shooting the defendant and his stepdaughter were out in the road in front of the house in close proximity to the deceased. It is without conflict that the defendant, his wife, and stepdaughter actually participated in the shooting, and several of the state's witnesses testified that the deceased had committed no overt act at the time of this second shooting, when he was killed. According to the uncontroverted evidence, the deceased had been previously disarmed by his son, and had no weapon at the time he was fired upon by the defendant, his wife, and stepdaughter, and was shot and killed.
The statement made by the defendant to his wife shortly after the difficulty to the effect that she was a coward was admissible as a part of the res gestae; this question, however, is not raised as no objection is shown to have been interposed to the question eliciting this testimony, and from aught appearing, the answer was responsive to the question. Granberry v. State, 184 Ala. 5, 63 So. 975; McCaskey Register Co. v. Nix Drug Co., 7 Ala.App. 309, 61 So. 484.
There was no error committed by the trial court in permitting the state to introduce the conversation which took place immediately after the firing of the fatal shot between the deceased and the defendant. It was admissible to show the defendant's hostile state of mind at the time, following so closely, as it did, upon the homicidal act. Smith v. State, 183 Ala. 10, 24, 25, 62 So. 864. This same testimony had been brought out without objection during the examination of the witnesses Pearl Walling and R.P. Cauley and Mrs. R.P. Cauley, and there could be no prejudicial error to permit the same fact to be shown over objection. Falkner v. State, 151 Ala. 77, 44 So. 409.
The predicate laid for the purpose of introducing evidence of the...
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