Weaver v. State
| Decision Date | 30 June 1911 |
| Parties | WEAVER v. STATE. |
| Court | Alabama Court of Appeals |
On application for rehearing.
For former opinion, see 55 So. 956.
The defendant's application for a rehearing, extensively argued by brief, is based upon two propositions, one of which was given no particular prominence, but scant attention indeed, in the well-prepared original brief filed, 14 pages in length.
The first insistence is that the defendant should have been allowed to offer certain evidence explanatory of flight by the witness White. The questions to which objections were sustained that defendant complains of were: "Did the defendant conceal himself while there?" and "Did not the defendant visit his grandfather in open daylight, going along the public road in Tuscaloosa county?" The defendant, in testifying in his own behalf before the witness White had been introduced as a witness had admitted his (defendant's) flight immediately after the killing, and offered no explanation whatever of his flight. True he testifies he did not run away, but walked off to his grandfather's in the adjoining county, but he admits he left right after the killing, stayed out in the woods all night, and then "walked" to his grandfather's next day. He neither made nor offered to make any explanation. That the defendant should afterwards offer to prove by the witness White his conduct while at his grandfather's two or three days after his admitted and unexplained flight gave no indication to the trial court that the purpose was to offer circumstances explanatory of flight. And in fact such evidence could have no tendency to rebut or explain the fact of the admitted flight, and could only be in rebuttal of evidence of concealment after flight--a proposition upon which no evidence had been introduced. Besides, there was no error committed in sustaining objections to these questions, as they were leading and suggestive, and the trial court can never be put in error for sustaining objections to such questions. Hill v. State, 156 Ala. 3, 46 So. 864; Pitman v. State, 148 Ala. 612, 42 So. 993; Reaves v. State, 158 Ala. 5, 48 So. 373.
The second proposition is that the defendant's witness Jeff Levi should have been allowed to answer the questions asked him by defendant on direct examination, as follows: "Was the deceased at that time quarrelsome?" and "Was the deceased at that time in a quarrelsome mood, during the seven minutes immediately preceding the shooting?" to which questions the court sustained the state's objections. This quarrelsomeness and quarrelsome mood had reference to a period or duration of time extending over some seven minutes preceding the fatal difficulty; and, while we appreciate that the authorities have gone to considerable length in permitting opinion statements by witnesses in testifying to the appearance and demeanor of persons from observation, we must not lose sight of the fact that the reason for the rule making this kind of evidence permissible is that better evidence is not obtainable, and that the witness may give the opinion of an impression produced upon his mind, because a description of the facts producing the impression is impossible or difficult of narration. The questions in point here call for more than a mere shorthand rendering of facts, or such an opinion as a witness may give under the recognized exception to the general rule against the permissibility of opinion evidence; these questions call for the mental status, the mood in which the deceased was, extending over a period of seven minutes time. How he evidenced such a quarrelsome mood during that length of time was certainly susceptible of narration. He must have said or done something during that seven minutes to indicate to the witness his quarrelsome mood; he could not alone have looked a quarrelsome mood for seven minutes, and what he did or said were facts that should have been given to the jury, that they might draw the proper inference from them.
The cases considering this question of opinion testimony are numerous, and we will only refer to them in a general way. In Prince's Case, 100 Ala. 144, 14 So. 409, 46 Am. St. Rep 28, cited by the appellant, a witness was allowed to testify that the defendant "seemed much excited," and in Jenkins' Case, 82 Ala. 25, 2 So. 150, it was held permissible for a witness to state that the defendant "appeared like he was mad," while in ...
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Bohannon v. State
...Cates v. State , 50 Ala. 166 (1874) ; Easley v. State , supra; Weaver v. State , 1 Ala.App. 48, 55 So. 956, rehearing denied, 2 Ala.App. 98, 56 So. 749 (1911). In a mutual fight where no more than ordinary battery was intended, the blows may constitute provocation, but use of deadly weapon ......
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... ... but the sum or resultant of every one's experience and ... observation, and of which a shorthand rendering is ... admissible. Various cases in which this principle has been ... discussed and applied are collated in the case of Weaver ... v. State, 2 Ala.App. 98, 56 So. 749, and many of the ... opinions quoted from by the writer in applying previous ... holdings to the concrete facts under consideration involving ... this rule to the case then under consideration. The same ... principle has been under consideration in more ... ...
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