Williams v. State

• Decision Date: 14 January 1947
• Docket Number: 6 Div. 372.
• Citation: 32 Ala.App. 597,28 So.2d 731
• Parties: WILLIAMS v. STATE.
• Court: Alabama Court of Appeals

28 So.2d 731

32 Ala.App. 597

WILLIAMS v. STATE.

6 Div. 372.

Alabama Court of Appeals

January 14, 1947

Jas A. McCollum, of Tuscaloosa, for appellant.

Wm N. McQueen, Atty. Gen., and Bernard F. Sykes, Asst. Atty Gen., for the State.

HARWOOD Judge.

The appellant was indicted for and found guilty of murder in the second degree.

The evidence introduced by the State in its effort to establish the appellant's guilt was circumstantial.

The body of a negro man named John Plummer was discovered on August 14, 1944 in some woods in Fayette county. The back of his head had been crushed in and the body was lying face down, with the face imbedded in the dirt. A large stone with blood stains and a broken rifle were found in the vicinity of the body. Dr. Stewart, who examined the body of the deceased at about 11 a. m., was of the opinion that he had been dead from 12 to 24 hours at the time of his examination.

The deceased was seen in Fayette, Alabama, on Sunday morning, August 13, 1944, the morning preceding that on which his body was found. He caught a ride in an automobile to a point a short distance south of Fayette where he left that automobile.

Thereafter the deceased went by Jim Rosselle's house where he borrowed a target rifle and some shells. It was this rifle that was found broken near his body.

Three State witnesses testified that they were south of Winfield on Sunday August 13, 1944, at about 12:30 p. m. having driven out to service an automobile that was out of gasoline. An A model Ford roadster automobile passed while they were putting gasoline in the distressed car. Thereafter they proceeded in the same direction as the Ford and followed it for some two miles until it turned off into a logging road. These three witnesses continued on to Oscar Mills' house about a half mile further, and then returned over the same route in about 15 or 20 minutes. They observed the Ford parked about 100 yards off their road on the logging road it had turned into when they were following it on their trip out. The place where the Ford was parked was near the place where deceased's body was later found.

One of these witnesses identified this parked Ford automobile as being that owned by appellant.

These three witnesses observed Jordan Hankins (who also testified for the State) on the road about a quarter of a mile from the logging road as they were making the return trip.

Fred Webster testified that he was sitting on his porch on the Sunday in question and saw the appellant and another person pass in an automobile. While within sight they stopped and picked up a negro man of whose identity this witness could not be sure.

Jordan Hankins was the most important witness presented by the State, as he was the only witness positively placing both the appellant and the deceased in appellant's automobile. Hankins testified on the Sunday in question he was walking down the gravel road off of which ran the before-mentioned logging road when a Model A Ford roadster automobile passed him at about 12:30 p. m. going in the direction of the logging road. There were three persons in this automobile and Hankins recognized the appellant and deceased as being two of them. The third passenger he did not recognize. The point at which Hankins saw this automobile was about a mile from where deceased's body was found.

Gus Sullivan, another witness for the State, testified that he saw the appellant and another person he did not recognize driving toward Winfield about 1 or 2 o'clock on the Sunday afternoon in question.

Sherman Brashier, a deputy sheriff, testified that at the time of his arrest appellant stated that he had been to the place where Plummer's body was found on the Sunday morning of its discovery, but that appellant denied killing deceased.

The above substantially constituted the State's case in chief and upon presentation of the above evidence the State rested. The appellant thereupon moved for a directed verdict, and to exclude the evidence on the grounds that there had been failure of proof of the corpus delicti. The trial court denied such motion.

The corpus delicti may be established by circumstantial evidence, Winslow v. State, 76 Ala. 42, and may be shown by evidence from which only a reasonable inference that the crime has been committed may be drawn by the jury, the proved facts and circumstances being considered together. Warren v. State, Ala.App., 25 So.2d 51; Kozlowski v. State, Ala.App., 27 So.2d 811. Two elements must be present, first, a criminal act, and second, the defendant's agency in the production of the act. Mills v. State, 17 Ala.App. 493, 85 So. 867. In our opinion the evidence presented by the State was amply sufficient for the jury to infer the presence of the two above-mentioned essential elements necessary to establish the corpus delicti and the court's action in denying appellant's motion was proper. Desilvey v. State, 245 Ala. 163, 16 So.2d 183.

The defense in the trial below consisted of testimony which if believed would establish an alibi for the appellant at the time of the murder of the deceased, and also of the testimony of some dozen character witnesses.

The testimony of some five of these character witnesses was to the effect that they had lived in the same communities with appellant for substantial periods of time, that they knew his general reputation in such communities, and that same was good. On cross-examination of these witnesses it was developed that J. V. Porter based his estimate of appellant's character on the fact that he had heard appellant's employer say he was a good worker, and further that 'everybody I knowed said he was all right,' though he could not remember specifically any one who had discussed appellant's reputation, while John Sanderson, Bone Tilley, M. W. Harris, and Walter Matthews had never heard appellant's character discussed either pro or con.

After development of the above bases on which these five posited their character testimony, the court in each instance on motion of the solicitor excluded the testimony of the above witnesses respectively, to which action of the court the appellant duly reserved an exception.

In all criminal prosecutions the accused may offer evidence of his previous good character, not only where doubt exists on other proof, but even to generate reasonable doubt of his guilt. Bogle v. State, 27 Ala.App. 215, 169 So. 332; Lee v. State, 23 Ala.App. 403, 126 So. 183. While the testimony of all of the abovementioned character witnesses except Porter is clearly negative in character, it has long been established that absence of discussion of a person's character in no way vitiates or affects the privilege of those acquaintances who have lived for substantial periods of time in the same community, and who would ordinarily have had the opportunity to have heard his character discussed, from testifying as to the accused's good character. This for the reason that 'the best character is that which is least discussed.' The only predicate necessary is that the character witnesses, from opportunity, know the accused's character. Hadjo v. Gooden, 13 Ala. 718; Childs v. State, 55 Ala. 28; Hussey v. State, 87 Ala. 121, 6 So. 420; Glover v. State, 200 Ala. 384, 76 So. 300; Riley v. State, 216 Ala. 536, 114 So. 12; Puckett v. State, 24 Ala.App. 217, 133 So. 63; Dyess v. State, 224 Ala. 610, 141 So. 662.

In our opinion, and particularly in light of the circumstantial nature of the evidence presented by the State, the trial court erred in excluding the testimony of the above character witnesses.

As before stated, Jordan Hankins, a witness for the State, testified that he recognized appellant and deceased in the Ford roadster being driven toward the scene of this crime. On cross-examination he was asked by appellant's counsel if he had not testified before the grand jury that he did not recognize any of the occupants of this car. The court sustained the State's objections to this line of questioning, to which ruling appellant duly excepted.

Since an affirmative answer would have tended to contradict or impeach Hankins' testimony given at the trial, the court erred in sustaining the objections to such questions. The fact that the alleged contradictory statement was made before a grand jury in no way excepts it from the general rule that a witness many be cross-examined as to prior statements made by him contradictory to statements made in his testimony in the pending trial. Smith v. State, 183 Ala. 10, 62 So. 864; Riley v. State, 21 Ala.App. 655, 111 So 649; Sec. 87, Title 30,...