White v. State
| Decision Date | 16 June 1896 |
| Citation | 21 So. 330,111 Ala. 92 |
| Parties | WHITE v. STATE. [1] |
| Court | Alabama Supreme Court |
Appeal from city court of Montgomery; W. S. Thorington, Judge.
Douglas White was convicted of murder in the second degree, and appeals. Reversed.
The appellant was indicted and tried for the murder of Margaret Davis, and convicted of murder in the second degree, and sentenced to the penitentiary for 35 years. The testimony on the part of the state tended to show that, in Montgomery county, before the finding of his indictment, and in the nighttime, without provocation or excuse, the defendant shot Margaret Davis with a gun, from the effects of which wound she died; while the testimony for the defendant was that the shooting was done accidentally. Upon the introduction of Chaney Mitchell as a witness for the state, she testified that, about 2 or 3 o'clock in the morning, she was awakened by the cries and screams of the children of the deceased, Margaret Davis, and that, on going to the latter's room, she found the deceased lying upon the floor in her night clothing, with a gunshot wound in her left side, and her clothing was on fire just about the part of her person where the wound was inflicted, and that the deceased lived but a few minutes after the witness went into her room. Thereupon the solicitor asked the witness the following question: "Did Margaret Davis, the deceased, make any statement or say anything in your presence about the shooting?" The defendant objected to this question, the court overruled the objection, and the defendant duly excepted. The witness, in answer to said question, stated that the deceased said: "That man has shot me; I am dying; pray for me." The defendant moved the court to exclude this answer from the jury, and duly excepted to the court's overruling his motion. The witness further testified that these words were the only words uttered by the deceased after the witness entered her room, and that there was no other person present at the time the deceased made the declaration. The sergeant of police of the city of Montgomery testified that, about 3 o'clock on the morning of the homicide, and shortly thereafter, the defendant came to police headquarters in the city of Montgomery, and surrendered himself, told the witness what had taken place and turned over the gun to him. The defendant introduced as a witness John W. Martin, who is captain of police in the city of Montgomery, who testified that he had known the defendant for a number of years, and that he knew the defendant's character for peace and quiet in the community in which he lived, and that his character was good. On cross-examination the solicitor asked this witness the following question "Have you not heard of an affray or fight in which the defendant participated?" Upon the witness answering that he had, he was then asked by the defendant: "Has not the defendant been tried and acquitted of said affray or fight inquired about?" The state objected to this question the court sustained the objection, and the defendant duly excepted. George W. Powell, jailer of Montgomery county, was introduced as a witness for the defendant, and upon his testifying that the defendant had been in the county jail since September, 1893, he was asked the following question "Do you think you know the character of the defendant for peace and quiet while an inmate of said jail?" The state objected to this question, which objection the court sustained, and the defendant duly excepted. Upon the introduction of all the evidence, the court, ex mero motu charged the jury, among other things, as follows: "The statement of Margaret Davis to Chaney Mitchell that 'that man shot me; I am dying; pray for me,' under the circumstances, and in view of her condition when made, indicates that she then realized she was about to die, and you may consider it, in connection with the other testimony, and determine what weight you will give to it." The defendant duly and separately excepted to this portion of the court's general charge to the jury, and also separately excepted to the court's refusal to give each of the following charges requested by him: (1) "Questions propounded by the solicitor to character witnesses for defendant, as to whether they have heard of commission of other offenses by the defendant, ought not to be considered by the jury, and therefore should have no weight with them whatsoever." (2) "While the state, on the cross-examination of a witness introduced by defendant to establish his good character, may ask said witness whether he had ever heard that defendant had committed other offenses going to his character, the law does not debar the state from proving, as a matter of fact, that defendant had been accused of or prosecuted for the offenses inquired about; and, when such inquiry on cross-examination is made, and answers in the negative are given, the failure to produce such evidence may be considered by the jury as favorable to defendant in determining the question as to whether good character has been satisfactorily established, and in no event, in such a case, can the mind of...
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