Watson v. State

• Decision Date: 07 March 1957
• Docket Number: 6 Div. 47
• Citation: 266 Ala. 41,93 So.2d 750
• Parties: B. M. WATSON v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 750

93 So.2d 750

266 Ala. 41

B. M. WATSON v. STATE of Alabama.

6 Div. 47.

Supreme Court of Alabama.

March 7, 1957.

Rehearing Denied April 4, 1957.

Beddow, Gwin & Embry and Roderick Beddow, Jr., Birmingham, for appellant.

John Patterson, Atty. Gen., Bernard F. Sykes and Jas. W. Webb, Asst. Attys. Gen., for the State.

MERRILL, Justice.

Appellant was indicted, tried and convicted for murder in the first degree and sentenced to imprisonment in the penitentiary for life. His motion for a new trial was overruled and he appeals.

The deceased, Edward Battles, and three friends arrived at a beer joint, First and Last Chance, on old Highway 11 in Jefferson County, not far from the Tuscaloosa County line, around 9:15 p. m., on June 18, 1955. One of his friends, C. L. Thompson, had an unopened can of beer, purchased at another establishment, which he set on the counter at First and Last Chance. The defendant, manager of the beer joint, told Thompson that if he was going to drink beer in his place of business he would have to buy it there. Thompson told defendant that if he didn't appreciate their business they would go, and he and his friends began moving toward the door. At a point near the door, defendant grabbed Thompson by the shoulder but one of the party, not the deceased, pushed Thompson out the front door and pushed Watson toward the interior of the joint and all the members of Battles' party went out across an uncovered platform or porch in front of the door, which extended about five feet toward the highway and was about eight inches above the ground, with Battles being the last out the door. As the party went out the door, defendant went back behind the counter and got a pistol and returned to the porch. Thompson testified that Watson told deceased to run and when he did not run, defendant shot deceased three times and shot at Thompson twice. The owner of the place, Gorman Armstrong, testifying for defendant, said that deceased was attacking defendant with a plank or board. Deceased was shot three times; his friends took him to a hospital and he died some hours later.

There was no evidence that deceased and defendant had any words prior to the time the party was leaving and all the eye-witnesses put deceased off the porch before the defendant returned to the porch with the pistol. Defendant did not testify in his own behalf.

In brief, appellant cites three instances in which he argues reversible error occurred. The first is in the cross-examination of the State's rebuttal witness, Pearl House, the mother of the wife of deceased. In an attempt to show bias, interest or prejudice of this witness, defendant's counsel addressed the following statement to her: 'You are aware of the fact, and you know, that your daughter is suing the defendant for a hundred thousand dollars.' The State objected and three followed a three-sided colloquy between counsel for both sides and the court. Counsel for defendant argued that since the witness was the mother of the deceased's wife, who was suing the defendant for damages in a civil case, she was interested sufficiently to be biased or prejudiced. The solicitor argued that since the mother was not a party to the suit, the mere fact of the relationship of mother and daughter did not impute interest to the mother. It seems that the court was inclined to agree with the solicitor's argument when defendant excepted and the matter was dropped.

It is settled that it must appear from the record that a ruling of the court was had on a proposition presented by objection or motion, and that action of the court was had thereon. It is the act of the court, not the act of the parties in invoking it, though necessary thereunto, that is reviewable on appeal. Dowling v. State, 151 Ala. 131, 44 So. 403; Anderson v. State, 18 Ala.App. 58, 89 So. 98.

The colloquy previously referred to is copied in briefs of both parties and we have considered it carefully in consultation. We are of the opinion that it is not clear that the trial court ever actually ruled on the objection. In such case, there is nothing presented for us to review. Also, the literal wording of the statement and the punctuation in the record shows that it was a statement to the witness and note a question, and was objectionable for that reason. But irrespective of whether a ruling of the court was had, the defendant had already succeeded in making his point with the jury that the witness' daughter was suing the defendant. The preceding witness for the defendant was the clerk of the circuit court, and the complaint, whereby deceased's wife was suing defendant for $100,000, was offered in evidence. The statements made by counsel then, and in the colloquy during the cross-examination of Pearl House, were more than adequate to apprise the jury of the pending suit.

Appellant next urges that the court erred when defendant objected to the statement in the solicitor's closing argument 'when that maniac shot that man like a dog as he stood on the porch over him.' The following transpired:

'Mr. Beddow: And we object to it on the ground that there is no evidence here that Mr. Watson is a maniac. There is no evidence, may it please the court, that it is a statement of fact by counsel, without a reasonable inference arising from the evidence in this case, and it is done for the purpose of inflaming the minds and prejudices of--and minds and prejudices of the jury against the defendant.

'The Court: I'll exclude that portion of it, 'shot him like a dog' but he can argue the inference from the evidence that he shot him while he was lying there.

'Mr. Beddow: And, if your honor please, further, because of the irreparable statement and the irreparable damage done to the interest of this defendant by that statement, which was made by counsel in his closing argument, and for the reason that it is inerradicable, we move the court to declare a mistrial in this case.

'The Court: Over-ruled.

'Mr. Beddow: We except.'

An eyewitness had testified that the defendant had shot deceased as he was lying down in front on the porch, and that the gun was about two feet from...