Whigham v. State
| Decision Date | 30 June 1924 |
| Docket Number | 4 Div. 902. |
| Parties | WHIGHAM ET AL. v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Covington County; W. L. Parks, Judge.
Alberta Whigham and Joe Jones were convicted of murder in the second degree, and appeal. Affirmed.
A Whaley, of Andalusia, for appellant.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The appellants were tried for murder in the first degree convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for a term of ten years.
The testimony for the state was directed to showing that the appellant Alberta Whigham and one Mary Smith, called "Little Bit," were having a fight, in which appellant Alberta Whigham cut "Little Bit" several times with a knife; that the deceased, Iseral Palmer, alias Jabo, said, "You are all going to let this woman [referring to appellant Alberta Whigham] kill 'Little Bit."' Deceased then slapped Alberta, and she and Joe Jones (appellant) "made after Jabo with a knife." Jabo ran several steps, got a rotten limb, and went back and struck Alberta, the limb broke, and Alberta started after Jabo with a knife, and Jabo ran a short distance and got another piece of limb, and went back and struck Alberta again, and when he hit her with a stick that time Joe Jones (appellant) ran up with a stick two or three feet long and hit Jabo with it, at the same time running into Jabo, when they clinched and fell, Joe Jones falling on top. While they (Joe and Jabo) were down Alberta Whigham ran into them and stabbed Jabo several times with a knife, the wounds producing death.
The evidence for the defendant tended to show that Jabo (the deceased) struck Alberta Whigham with a stick, knocking her down, threatening to kill her, and that she cut him while he was striking her, and that Joe Jones had nothing to do with the fight.
It is insisted by appellants that the court erred in admitting in evidence the details of the difficulty between Alberta Whigham (appellant) and "Little Bit." The deceased interfered in this fight, and there was one continuous fight until he received the knife wounds causing his death. In homicide prosecutions it is permissible to show as part of the res gestæ all that was said and done at the time of the difficulty, whether by the defendants or any others participating in it, and all that occurred immediately prior thereto leading up to, and explanatory of, the tragedy. Blevins v. State, 204 Ala. 476, 85 So. 817; Brown v. State, 109 Ala. 70, 20 So. 103; Moulton v. State (Ala. App.) 98 So. 709; Shumate v. State (Ala. App.) 97 So. 772.
While one of the appellants (Joe Jones) was testifying on direct examination his counsel propounded to him the following question:
"What is his [referring to Nelson Gaynor, a state's witness] state of feeling toward you and Alberta or either of you?"
The answer was:
The court sustained the state's motion to exclude the answer and the defendant reserved an exception to this ruling of the court.
It was permissible for the defendant to prove the state of feeling of the witness Gaynor toward him for the purpose of showing bias or ill will. Hicks v. State, 4 Ala. App. 120, 59 So. 231; Henry v. State, 79 Ala. 42; Lodge v. State, 122 Ala. 97, 26 So. 210, 82 Am. St. Rep. 23. But it was not permissible for the defendant to state the cause of the bad feeling and the details of the occasion of such feeling. Tuggle v. State (Ala. App.) 98 So. 815. The statement was a conclusion of the witness of the condition of Gaynor's mind, that Gaynor did not like him because he could beat Gaynor gambling. A person may not testify to the mental attitude of another. Spurlock v. State, 17 Ala. App. 109, 82 So. 557; Bailey v. State, 107 Ala. 151, 18 So. 234.
The witness Joe Jones...
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