Allen v. State , 60 Ala. 19 ( 1877 )

MANNING, J.

There was no error in the swearing of the jury. The two oaths were substantially the same. The usual practice is to swear each juror as he is selected, and that is the better practice. In this instance, they were sworn first singly, and afterwards collectively.

2. One of the State’s witnesses, a negro man, testified to many particulars, some occurring at different times, adverse to the defendant below; and being cross-examined, he confessed, with much apparent simplicity, infirmities of mind. He said, he “ did not know how far one hundred yards, or two hundred yards, were exactly; that he could not step off one hundred yards and count it; that he would forget how far he had gone before he counted a hundred; that his memory was weak and bad; that when he was excited, his mind became confused, and seemed to go out from him; that'when a white man spoke to him short, he seemed to lose his mind; that he was excited and scared that morning, when Mr. Allen took him in the collar; that he trembled all over, and had never got over it, and was still frightened from it,” &e: This was about two years after the events which had so excited him. Defendant then asked the witness, “if he did not swear on the trial in Choctaw county, before Judge "Warren, in the matter of the application for bail by Brad Allen, that he was ‘ weak-witted.” The State objected to the question; the objection was sustained, and the defendant excepted. The defendant then asked the same question, and stated that his object, in asking the question a second time, was to test the recollection of the witness. The State objected, and the objection was sustained again, and the defendant excepted. “ The defendant then asked, if he did not believe that some people eat little white roots for certain purposes. The State objected to the question. The defendant stated to the court that the object . . was to show the mental capacity of the witness — that witness entertained singular opinions, and one of them, by eating certain white roots, that gave them peculiar powers.” The objection to the question was sustained, and defendant excepted.

The general mental capacity of the witness seems to have been pretty well disclosed, by his answers to questions previously put; and the interrogatory about superstitious notions associated with certain white roots, whether derived from tradition, or the invention of his own fancy, was too remote from the subject to be allowed. — Blakey’s Heirs v. Blakey’s Adm’r, 33 Ala. 611. Besides, such notions need not hinder him from being a good observer of facts, and faithful in narrating them. But, the question about what he said on a preliminary examination about the same matter, some months before, when put to test Ms memory, appears to me admissible. True, he had already testified, in reply to interrogatories, that his memory was weak. But his answers make the impression that he was rather “ weak-witfced,” than of defective memory. He can not be regarded as a good witness, or an expert, in respect to his own mental condition. He evidently had but little of 'that power of analysis, which enables one to ascertain the nature of peculiar defects. His testimony, touching several matters, differed from that of some of the other negro witnesses, but was apparently given in a manner to inspire confidence in its truthfulness. Therefore, it might be important to show, by such a test as that proposed, that the memory of the witness was not to be trusted; that he was speaking of things that existed only in his imagination. But my brothers think the matter inquired about was not relevant enough, and that the ruling of the circuit judge should not be reversed.

3. We do not find any evidence of confessions in the record. What are referred to as such, are but explanations, made by defendant, immediately after the homicide, to the laborers in his employment, and were proved, without objection, as a part of the res gestee.

4. There was no error in the charges given that were excepted to by defendant, nor in the refusal of the court to give the last two of the charges asked in his behalf. The duty of the jury to accord to him the benefit of the “reasonable doubt,” was amply impressed, in many forms, upon them. And as to the two charges for defendant, which were refused, the first was calculated to lead the jury off, upon an inquiry concerning what other persons than defendant might have thought of the danger of his situation, and was otherwise objectionable; while the last charge refused spoke of an apprehension of imminent danger to defendant, without specifying the nature of the danger, whether to life, of great bodily barm, or some other, to which it is suggested he might have been exposed. In fact, however, there was no evidence of any such danger at all, as to justify the giving of any charge on that subject.

Let the judgment be affirmed.