White v. State

• Citation: 136 So. 420,24 Ala.App. 442
• Decision Date: 04 August 1931
• Docket Number: 7 Div. 758.
• Parties: WHITE v. STATE.
• Court: Alabama Court of Appeals

136 So. 420

24 Ala.App. 442

WHITE v. STATE.

7 Div. 758.

Court of Appeals of Alabama

August 4, 1931

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

C. C White was convicted of murder in the second degree, and he appeals.

Reversed and remanded.

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

Thos E. Knight, Jr., Atty. Gen., for the State.

SAMFORD J.

The defendant was indicted for the murder of G. C. Roper, and on his trial was convicted of murder in the second degree and sentenced to twenty years in the penitentiary. The homicide took place in the home of defendant some time after 9 o'clock at night. The parties were next door neighbors and up to the time of the fatal difficulty had been on friendly terms, and even on this night deceased was at the home of defendant by invitation given as deceased was going into his own home. The wives of both defendant and deceased were away from home, and the visit of deceased began as is usual between friends. After the deceased had been in defendant's home for some time, an altercation arose in which deceased, being a stalwart man weighing 180 pounds and defendant a small man weighing 135, assaulted and beat defendant with his fists, and defendant shot deceased with a small gun which he picked up during the altercation, from which gunshot deceased died. The state claims that the shot was fired before any assault had been made by deceased, as a result of anger engendered by words, while the defendant claims that both he and deceased were drinking; that after the whisky begun to take effect the deceased began cursing and abusing defendant; that defendant tried to avoid a difficulty, and ordered deceased out of his home; that deceased refused to go, but was assaulting and beating defendant, when defendant "jerked loose," grabbed the gun, and, as deceased continued to advance upon him, he fired; that the shot did not stop deceased, but deceased continued the assault, knocking defendant down and beating him severely.

In the development of its case the state offered the testimony of Mrs. G. C. Roper, the wife of deceased, who, after testifying as to where she was at the time of the homicide and the time at which she arrived at her husband's bedside, the following appears in the bill of exceptions:

"Thereupon the Solicitor for the State propounded to the witness the following question:

"Q. Did he call you by name, or by the affectionate name he usually called you?

"The defendant objected to the question on the following separate and several grounds, viz: 1. It is illegal; 2. It is immaterial; 3. It is incompetent; 4. It is irrelevant.

"The Court overruled said objection and to this ruling of the Court the defendant then and there reserved an exception.

"The witness answered the question as follows:

"A. Yes, sir, he did.

"The defendant moved to exclude the answer on the same grounds as were interposed to the question to which it was responsive.

"The Court overruled said motion and to this ruling of the court the defendant then and there reserved an exception.

"There in the Hospital, before he died, Dr. Roper made a statement to me, and before he made that statement he said something in reference to whether he believed that death was impending, or in reference to his belief that he was going to die, and after that he made a statement in reference to his being shot.

"Thereupon the Solicitor for the State propounded to the witness the following question: "Q. I will ask you to tell this jury and his Honor what he said with reference to whether or not he believed he was going to die?

"The witness answered the question as follows:

"A. He reached over and caught my hand and said 'Hold me tight' and called me by my name and said 'The end is very near' and said 'I want you to see that my name is cleared to the world-that White gets justice.'

"The defendant moved to exclude said answer on the following separate and several grounds, viz: 1. It is illegal; 2. It is immaterial; 3. It is incompetent; 4. It is irrelevant.

"The Court overruled said motion and to this ruling of the court the defendant then and there reserved and exception.

"Thereupon, the defendant moved to exclude that portion of said answer as follows: 'I want you to see that my name is cleared to the world-that White gets justice,' and for grounds of said motion assigns the following separately and severally, viz; 1. It is illegal; 2. It is immaterial; 3. It is incompetent; 4. It is irrelevant; 5. It forms no part of a dying declaration; 6. It forms no legal part of a dying declaration.

"The Court overruled said motion and to this ruling of the court the defendant then and there reserved an exception.

"The defendant then and there moved the court to exclude that portion of said answer which is as follows: 'He reached over and caught my hand and said "Hold me tight"' and for grounds of said motion assigns the following separately and severally viz: 1. It is illegal; 2. It is immaterial; 3. It is incompetent; 4. It is irrelevant; 5. It forms no part of a dying declaration; 6. It forms no legal part of a dying declaration.

"The Court overruled said motion and to this ruling of the court the defendant then and there reserved an exception.

"Thereupon the Solicitor for the State propounded to the witness the following question:

"Q. Go ahead, what did he say? A. He said 'He shot me down like a dirty dog-I did not have a dog's chance to defend myself.'

"Thereupon the defendant moved to exclude said answer on the following separate and several grounds, viz: 1. It is illegal; 2. It is incompetent; 3. It is immaterial; 4. It is irrelevant; 5. No sufficient predicate has been laid for the introduction of that evidence; 6. The same forms no part of a dying declaration; 7. It forms no proper part of a dying declaration; 8. It forms no legal part of a dying declaration.

"The Court overruled said motion and to this ruling of the court the defendant then and there reserved an exception.

"Thereupon the defendant moved to exclude the following portion of said answer, viz:

"'He shot me down like a dirty dog.'

"And for separate and several grounds for said motion assigns the following, viz: 1. It is illegal; 2. It is incompetent; 3. It is immmaterial; 4. It is irrelevant; 5. No sufficient predicate has been laid for the introduction of that evidence; 6. The same forms no part of a dying declaration; 7. It forms no proper part of a dying declaration; 8. It forms no legal part of a dying declaration.

"The Court overruled said motion and to this ruling of the court the defendant then and there reserved an exception.

"Thereupon the defendant moved to exclude the following portion of said answer, viz:

"'I did not have a dog's chance to defend myself.'

"And for separate and several grounds for said motion assigns the following, viz: 1. It is illegal; 2. It is incompetent; 3. It is immaterial; 4. It is irrelevant; 5. No sufficient predicate has been laid for the introduction of that evidence; 6. The same forms no part of a dying declaration; 7. It forms no proper part of a dying declaration; 8. It forms no legal part of a dying declaration.

"The Court overruled said motion and to this ruling of the court the defendant then and there reserved an exception.

The trial proceeded for two days, and, after the evidence was all in and closed, the court ex mero motu excluded the following testimony of the witness Mrs. Roper, to wit: "I want you to see that my name is cleared to the world and see that White gets justice." "Mr. White shot him before he realized what had happened-that he did not think he was going to shoot him"-with the remark: "Now that part of the testimony I have excluded you are not to consider as testimony or evidence in making your verdict."

After the verdict, defendant made a motion for a new trial assigning among others the rulings of the court as above indicated.

There was also included in the motion for a new trial the ruling of the court in overruling defendant's motion to exclude that part of the dying declaration testified to by the witness Sharpe: "And he said that Mr. White shot him before he realized what had happened; that he didn't think he was going to shoot, and that he didn't have a dog's chance."

It is now the accepted law of this state that the dying declarations of the deceased must conform to the same rules of evidence as if the deceased himself were alive and on the stand...