Wise v. State
| Decision Date | 30 June 1914 |
| Docket Number | 285 |
| Citation | 66 So. 128,11 Ala.App. 72 |
| Parties | WISE v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.
Will Wise was convicted of murder in the second degree, and he appeals. Reversed and remanded.
The witness Brunson testified that as mayor he held an inquest that night, and that the defendant was present and sworn and testified at the inquest. The state then asked the following questions:
"State to the jury what he said, if anything, about being down at Mrs. Griffin's at all that night [Mrs Griffin being the person charged to have been killed]?"
Over the objection of defendant, the witness was permitted to state:
"He first said that he had not been there; then he said he went to the edge of the yard and asked Len's wife if Len was there, and that she said no; Len was uptown."
He was then asked the following question: "Did he say anything there about his having had a fight there with Hub Patrick?" Objection was overruled to the question, and he was permitted to state: "He didn't mention it." The witness, continuing, stated that he heard defendant testify under habeas corpus proceedings and also at the preliminary trial, and he was asked if at that time defendant did not testify that he was at Mrs. Griffin's house the night she was killed, and that he was there at the time that Hub Patrick said he was there, and that he had had a fight with Hub Patrick. This sufficiently illustrates the questions to the witness Davis and Brunson, except that the witness Davis seems to have been a police officer and had defendant in charge.
The witness Clayton Griffin testified that he would soon be 10 years old, did not go to school every day, but had been to school and was in the third grade; "that the bad man will get boys if they tell stories; that the people will send them off if they tell stories; that I know it is wrong to tell stories."
Dr W.F. Matheny was examined as a witness for defendant, and was asked the following question, to which objection by the state was sustained:
"Doctor, from an examination of the wound and the outer garments through which the load passed, how close, in your judgment, was the muzzle of the gun that fired that shot to the body of deceased at the time of the shot?"
He was also asked:
"Doctor, in your opinion, is it or not true that the fact that the clothing was only powder-stained and not burned--does not that in your judgment indicate that the gun at the time it was fired was right up against the body, or very near the body of deceased?"
The witness stated that he hunted very little, and had not had much experience with firearms of that character.
Johnson being sworn for the defense, testified as to the position of the body, and of the gun relative to the body, and was asked the same questions practically relative to powder burns as had been asked the witness Matheny.
The following charges were refused to defendant:
Given charge S is as follows:
If, from the consideration of all the evidence in this case there is created in the minds of the jury two reasonable theories as to the death of Mrs. Griffin one theory against defendant, and the other theory in his favor, then it is the duty of the jury to accept the theory in favor of defendant and acquit him.
C.D. Carmichael, of Geneva, J.A. Carnley, of Elba, and B.G. Farmer, of Dothan, for appellant.
R.C. Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.
The appellant was indicted for murder in the first degree, tried, and convicted of murder in the second degree.
In the trial court the defendant made a motion, that is strenuously insisted upon in briefs filed here, to quash the indictment, based on the misconduct of an attorney, employed to assist in the prosecution, going before the grand jury while it was engaged in deliberating on the case. It is alleged as grounds for the motion that the attorney made improper statements to the grand jury that influenced or induced the grand jury to return the indictment against the defendant. This motion is shown not to have been made until after the defendant had been arraigned and pleaded to the merits of the indictment, and was within the discretion of the trial court and not reviewable here. Hubbard v. State, 72 Ala. 164; Davis v. State, 131 Ala 10, 31 So. 569; Thayer v. State, 138 Ala. 39, 35 So. 406; Rogers v. State, 166 Ala. 10, 52 So. 33.
The question is not before this court for the additional reason that the court's ruling on the motion is not shown by a judgment entry set out in the record, but only by the recitals contained in the bill of exceptions. Garrett v. State, 97 Ala. 18, 14 So. 327; Conway v. Clark, 171 Ala. 391, 55 So. 117.
The transcript shows nearly 100 exceptions to the rulings of the trial court on the admission and rejection of evidence, and 84 assignments of error have been written upon the transcript by appellant's counsel, but, after reading the voluminous record and briefs, and giving careful attention to the matters presented, we do not deem it beneficial, or that it would serve any proper purpose to enter into a discussion of each of these matters in detail.
The deceased was a married woman who lived at home with her husband. It seems to be the theory of the state, to be gathered from the evidence, that it relied upon showing, as a motive for the killing, that the defendant was angered, or made jealous, by the attentions of one Hub Patrick to the deceased. Patrick, as a witness for the state, testified to a difficulty he had with the defendant on the night of, but some two hours before, the killing, that took place in the yard of the house of the deceased, near a window from which the deceased heard and saw part of the altercation, at a time when her husband was not at home--a fact which, it seems, was known to both men before going to the home of the deceased. After proving the fact that the defendant had a difficulty with Patrick at this time, under these circumstances, the state was allowed, against numerous objections made and exceptions reserved by the defendant, to go into the details of the difficulty, and show by Patrick that the defendant jerked him over and cursed him, calling him by vile names, and threatening to kill him; that the defendant choked him until he could not speak, and hit him three or four times in the face with his fist; that after the defendant jerked him over flat on his back he got astride of him and hit him; that the defendant informed the deceased, who had come to the window of her house, that he intended to kill him (Patrick), using oaths in connection with the threat; that upon the deceased's telling them to leave, the defendant got off of him, and that he went under the house to get away from the defendant. The evidence in behalf of the state showed that the defendant left the premises of the deceased after this occurence, and that the killing did not take place until some two hours afterwards, when, it is the contention of the state, he had returned to the home of the deceased. It was the theory of the defense that the defendant was a friend of the husband of the deceased, and that after the occurrence with Patrick at the home of deceased he left, and that the deceased, in an hour or two thereafter, committed suicide.
The difficulty between the defendant and Patrick cannot be said under the circumstances shown, to constitute a part of the res gestae of the act of homicide; it did not constitute one continuous transaction with it, nor was it substantially contemporaneous, so as to make the details of this difficulty with a third party admissible as illustrating the character of the main fact, or crime charged. State v. Stallings, 142 Ala. 112, 38 So. 261. The fact, general nature, and occasion of a former difficulty between the defendant and Patrick was, of course, admissible to support the theory of the state in tending to show a motive actuating the defendant in the commission of the crime charged against him, and to show that the defendant...
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