Windom v. State

Decision Date07 February 1922
Docket Number7 Div. 770. [*]
PartiesWINDOM v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied April 4, 1922.

Appeal from Circuit Court, De Kalb County; A. E. Gamble, Judge.

John Windom was convicted of murder in the second degree, and he appeals. Affirmed.

Baker &amp Baker, of Ft. Payne, and M. J. Head, of Tallapoosa, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAMFORD J.

The statute (Acts 1915, p. 722), amendatory of section 2846 of the Code of 1907, providing for review by appellate courts of action of trial courts in granting or refusing motions for new trials, requires that exception be taken to the decision of the court, and that the substance of the evidence in the case shall be reduced to writing, and also the decision of the court on the motion, and the evidence taken in support of the motion and the decision of the court shall be included in the bill of exceptions. We have carefully examined the bill of exceptions, and do not find any exception reserved to the action of the court in overruling the motion for a new trial. In the absence of such exception, we are without power to consider the motion for a new trial. Ross v. State, 16 Ala. App. 393, 78 So 309; Stover v. State, 204 Ala. 311, 85 So. 393; Birmingham W. W. Co. v. Justice, 204 Ala. 547, 86 So. 389; Powell v. Folmar, 201 Ala. 271, 78 So. 47; Stokes v. Hinton, 197 Ala. 230, 72 So. 503.

The defendant and two sons of deceased were engaged in a difficulty, a short distance from the store of deceased. Defendant drew a pistol and pointed it at the two sons. At this point one of the sons called to another brother, and told him to run and tell his father to come. This brother ran to the store and informed his father, who immediately looked for a pistol and, failing to find it, caught up a stick and rushed to the assistance of his sons, and, seeing the pistol in defendant's hand pointed at his sons, grabbed hold of the pistol, which was thereupon discharged by defendant, the bullet taking effect in the bowels of deceased. The father and one son grappled with defendant, and all of them fell; the deceased getting possession of the pistol, and afterwards, letting another take it, he fell, as a result of the wound. One Stewart, who was standing by, was asked to assist deceased in rising and to aid in carrying him home, and refused. The wound was mortal, and resulted in death in about two weeks.

Soon after deceased was shot, he said he would die as a result of the wound, and several times so stated, evidencing a knowledge and belief in his impending dissolution. The predicate for a dying declaration was amply proven, and the statements of the deceased, where relevant, were properly admitted in evidence. Some three hours before death, the deceased made and signed a statement as to what occurred during the difficulty, and, the proper predicate having been laid, this statement was admissible in evidence; but this admission of this statement did not preclude the admission of other verbal statements made by deceased, where proper predicates had been laid, and where witnesses testified to what the writing contained, such testimony could not possibly injuriously affect the defendant's rights. If the statements were the same as contained in the writing, such testimony could add nothing to the probative force of the writing; and if the testimony varied the written statement, such testimony would have been beneficial to defendant's case.

What was said and done by the deceased in preparation for the affray, after he was notified by his son, was so close in point of time and place as to be a part of the res gestæ of the difficulty, and was therefore admissible.

The question, asked defendant on cross-examination, "You had not been picking any cotton, had you?" was legitimate, and the objection of defendant to it was properly overruled. Besides, the defendant answered that he had, and, if the answer was material at all it was beneficial to defendant.

It appearing that defendant's arm was in a bandage when he was on trial and testifying, it was permissible for the court to allow the solicitor on cross-examination to inquire into the cause of the injury, to show, if it were so, that the injury was not the result of the rencounter with the deceased and his sons. The court by its rulings properly limited the inquiry to material facts, and while some of the questions asked by the solicitor were illegal, and properly so held by the court, the character of the questions are not such as would require a reversal of the case on account of prejudice claimed to have been engendered by the method of cross-examination.

Where the conduct of a prosecuting attorney is such, by the manner and method of cross-examination, or otherwise, as to cause the minds of the jury to be dominated in their conclusions, other than from the legal evidence, it is the duty of the trial court to correct this, either at the time, by a proper reprimand of the attorney and instructions to the jury, or, if the injury is such as, in the opinion of the court, the jury cannot continue in an unbiased consideration of the case, upon motion to discharge the jury and order a mistrial. But these things are largely in the discretion of the trial judge, and in the absence of a gross misuse of his discretion, in itself evidencing a bias, this court will not interfere or review his rulings. In this case the questions, in themselves, do not indicate bad faith upon the part of the prosecuting attorney, nor do we think the record discloses the defendant's case was injuriously affected thereby. The rule therefore, as cited from Corpus Juris, p. 893, is not applicable.

The court, over the objection and exception of defendant permitted the state to prove the general bad character of the defendant at the time of the trial, upon the theory, no doubt, that such testimony was alone for the purpose of impeaching the character of defendant for truth and veracity; he having testified as a witness in the case. When a defendant has testified as a witness, the credibility of his testimony may be impeached, like that of any other witness, by the state showing his general bad...

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