Williams v. State, 8 Div. 151

• Decision Date: 28 June 1935
• Docket Number: 8 Div. 151
• Citation: 163 So. 663,26 Ala.App. 531
• Parties: WILLIAMS v. STATE.
• Court: Alabama Court of Appeals

163 So. 663

26 Ala.App. 531

WILLIAMS v. STATE.

8 Div. 151

Court of Appeals of Alabama

June 28, 1935

Rehearing Denied Aug. 27, 1935

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Lawson Williams was convicted of murder in the second degree, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Williams v. State (8 Div 686) 163 So. 667.

W.L. Almon, of Florence, for appellant.

A.A. Carmichael, Atty. Gen., and Jas. L. Screws and Wm. H. Loeb, Asst. Attys. Gen., for the State.

SAMFORD, Judge.

The defendant was charged and convicted of killing Taylor Fulks. The parties were neighbors owning adjoining land, and the difficulty resulting in the homicide grew out of a dispute over the land line between the two farms.

There was evidence tending to prove that the first act of aggression was on the part of defendant, and those with him throwing rocks at the deceased. At this point the solicitor asked the witness, a son of deceased, who was then testifying: "At the time the rocks were first thrown your father was in his own field?" This question called for legal evidence as tending to prove and locate where the difficulty took place.

The second exception relates to a conversation between the dead man and his wife at a time and place not in any way connected with the homicide, and called for hearsay evidence. Davis v. State, 92 Ala. 20, 9 So. 616.

The defendant offered to prove by the witness Perkins a survey made by him of the line between the lands of defendant and deceased, which survey would have placed the line at such point as to have shown that deceased was on the land of defendant at the beginning of the difficulty. This evidence was properly excluded. The issues in this case do not include the location of the line between the lands of the parties, and we cannot allow the issues involved in this prosecution to degenerate into the settlement of a land line. Even if deceased had been on the land of defendant at the time of the difficulty, the defendant had no right to kill him in order to eject him. Such evidence as is here sought to be introduced would have involved the title to the strips of land over which was the dispute and would in effect have been submitting to the jury a collateral issue which probably would have distracted the mind of the jury from the real issues, and might have led the jury to believe that a landowner had the right, in ejecting a trespasser, to shoot and kill him. Coats v. Commonwealth, 191 Ky. 521, 230 S.W. 947; Utterback v. Commonwealth, 105 Ky. 723, 49 S.W. 479, 88 Am.St.Rep. 328; Gay v. State, 58 Tex.Cr.R. 472, 125 S.W. 896.

We have not been cited to, nor do we know of, any law to support the proposition that the fact that one happens to be on his own land at the time of a difficulty thereby secures to himself all the rights deducible from the principle which is illustrated by the maxim that every man's house is his castle and that he has a right to stand at its portals and defend himself against any and all attacks. Nor does the fact that a man is on his own land relieve him of the duty to retreat and flee, if he can do so without increasing his own peril, rather than to take the life of an adversary. Carter v. State, 82 Ala. 13, 2 So. 766; Lee v. State, 92 Ala. 15, 9 So. 407, 25 Am.St.Rep. 17; Vickers v. State, 18 Ala.App. 282, 91 So. 502.

The difficulty resulting in this homicide grew out of a controversy over a land line, and the stopping up of a terrace on the lands of defendant, or on the strips of land in dispute. Defendant sought to prove that this terrace had at other times been stopped up by the deceased. This was not a part of the res gestae, and was therefore inadmissible. In cases of this kind it is not permissible to introduce details of former controversies that shed no light on the pending issues.

The defendant's witness Newt Walker was questioned by the state as to whether he went before the grand jury in this case. He testified that he was summoned, went, and testified to the truth. What this had to do with the case is not apparent, but we are clear that it did not injuriously affect the defendant's cause.

After the state had made out its case and rested, and the defendant had introduced his evidence and rested, the state was allowed to introduce other evidence regarding the physical facts, not strictly in rebuttal. The defendant objected and excepted to these rulings of the court. While all cases in court should proceed in an orderly manner, much must be left to the discretion of the trial courts in the admission of testimony. In this case we do not find such abuse of this discretion as would justify a review.

As to the dying declaration, we are of the opinion that a sufficient predicate was laid, when all the surrounding circumstances are considered.

It is further objected that the dying declaration testified to by the witness Cleo Fulks was taken down in writing by one Jones in the hospital, and that the writing was the best evidence, and therefore secondary evidence of its contents was inadmissible. There is no evidence that the statement testified about was signed by the deceased, in the absence of which it was inadmissible in evidence, Green v. State, 43 Fla. 552, 30 So. 798; Cooper v. State, 89 Miss. 351, 42 So. 666, and might have been inadmissible for other reasons not here necessary to mention.

When the declaration was reduced to writing, read over to, and approved by, the declarant, the document becomes primary evidence, and parol proof of it will not be received in evidence without first accounting for the written document. 1 Whar.Crim.Ev.par. 295. But in order for the document to become primary evidence it must appear to be the intelligent act of the declarant.

Defendant's witness Andrew Springer was asked if he had seen deceased down at a swimming pool owned by the deceased, at which time he had a gun and tried to shoot the defendant, Almon Williams. The question was indefinite as to time, and called for the conclusion of the witness.

The defendant excepted to that portion of the court's oral charge as follows: "If the defendant has reasonably satisfied you on his plea of self defense,...