Hainsworth v. State , 136 Ala. 13 ( 1902 )

TYSON, J.

At the close of the testimony offered in behalf of the State, the defendant moved the court to exclude. all the evidence from the jury upon the ground that it was insufficient to support a verdict of guilty or to justify the submission of the case to the jury. This motion was overruled and properly so. Clearly the evidence was not without tendencies, which, if believed by the jury, would have'supported a vex’dict of guilty. This being true, the. defendant by his motion, could not transfer the burden and duty from the jury to the court, of determining its weight or credibility. The motion, as contended, is not the equivalent of a demurrer to the evidence. Had a demurrer been interposed instead of the motion and issue been joined upon it, the court would have been bound to have rendered a judgment of conviction upon it. The trial of the case would, of course, have been at an end. — Martin v. State, 62 Ala. 240; Blister v. The State, 26 Ala. 127; Bryan v. The State, Ib. 65.

The evidence tends to show that deceased was shot at night between nine and ten o’clock while on the front porch of his residence. Some four or five hours previous to the homicide, he and the defendant had a difficulty at or near the home of the former. The wife of deceased testified that defendant said to deceased upon his leaving the place of the difficulty: “I’ll get you, you grand rascal.” The evidence further tends to show, that defendant shortly after the difficulty attended a prayer meeting which ivas in a church about a mile distant from his home and the. home of deceased. The State, against his objection, was permitted to prove the facial expression of defendant while at the prayer meeting, some two hours before the homicide was committed. It is urged that this evidence was inadmissible because too remote — that it called for the appearance of defendant before the homicide was committed and was so far removed-from it as to form no part of the res gestae of the act of killing. We think this position wholly untenable. We can see. no good reason why the facial expression of the defendant while forming the design, if he did so, to assassinate in the night time his neighbor, should not be introduced in evidence against him. If his countenance was such as to indicate that he was contemplating the commission of the offense, it is a fact which the prosecution is entitled to have go to the jury, along with all the criminating circumstances in the case. Whether or not the expressions of his face indicated that he was contemplating the commission of the crime was, of course, for the jury, as likewise was the valúe of such evidence, depending, of course, upon its connection with other evidence criminatory or exculpatory. In Blount v. The State, 49 Ala. 381, 384, the assault with which the defendants were charged was committed on persons having in custody one Floyd. These persons, with their prisoner, had stopped at the house of Brasil. The defendants' came to Brasil’s and were busily talking together, but of what they were talking the witness could not say. A short time after this, and within about a quarter of a mile of Brasil’s, the assault was made, the defendants being the assailing party. The defendants objected and excepted to the admission of the evidence that they were busily talking together. The court said: “The evidence was properly admitted. The conduct, demeanor and expressions of the accused at or about the time of the offense with which he is charged are always admissible evidence. Their value is to be determined by the jury, and depends upon their connection with other evidence, criminatory or exculpatory.”

In Miller’s case (107 Ala. 40), a witness for the State, at whose house the defendant was boarding, testified among other things, that the defendant prior to the killing, came to her house to supper; that he did not engage in conversation, speaking only when he was spoken to; that he appeared angry. He was generally pleasant and talkative, but that night he was not. The defendant moved to exclude the statement that he appeared angry, which motion was overruled and an exception reserved. This court, speaking through Justice Head, sustained the ruling, and we think properly. It is true the point here insisted upon does not appear to have been made. Doubtless if it had, it would have been held to have been without merit.

In Johnson v. The Slate, 17 Ala. 623, the court, speaking to the point here under consideration, said: “If the conduct, demeanor and expressions (facial) of the accused, subsequent to the crime, may be proved as evidence of conscious guilt, although to be received cautiously, it is not obvious why the same indications, at or about the time of the crime, may not be proved for the same purpose.” It is true as we shall show further on, that this case has been departed from, but not on this point. The ease of Henry v. The State, 79 Ala. 42, cited by appellant as supporting his contention is not in point. In that case, it was the manner and conduct of the party assaulted, towards a third person, some hours previous to the assault upon him by defendant, that was attempted to be introduced in evidence by the defendant. Clearly the question involved in that case was entirely different from the one involved here.

The other ground of objection taken to the admissibility of the evidence was, that it is a conclusion of the witness. We do not understand that this ground is insisted upon. It is true the cases of Gassenheimer v. The State, 52 Ala. 313; McAdory v. The State, 59 Ala. 92, and Johnson v. State, 17 Ala. 618, are cited in brief, but they seem to be relied upon to support the contention which we have disposed of. In those cases, it was held that the evidence under consideration was objectionable because it is an opinion of the witness. They have, however, long since been departed from and were in terms substantially overruled in Prince v. The State, 100 Ala. 147. See also S. & N. A. R. Co. v. McLendon, 63 Ala. 275; Carney v. The State, 79 Ala. 17; Jenkins v. The State, 82 Ala. 25; Burney v. Torrey, 100 Ala. 157; James v. The State, 104 Ala. 20; Thornton v. The State, 113 Ala. 43; Miller v. The State, supra.

The first written charge requested by defendant was in this language: “In this case, the evidence is all circumstantial.” This the court refused, and properly so. It was a mere statement of a fact, which was as well known to the jury as to the court. It has not embodied in it a single element of a charge or instruction to the jury. It states no proposition of laAv and could not possibly have aided the jury in their deliberations. “The essential idea of a charge is that it is an authoritative exposition of the principles of law applicable to the case or to some branch or phase of the case, which the jury are hound to apply in order to render the verdict, establishing the rights of the parties in accordance with the facts proved.” — 11 Ency. PI. & Pr., p. 56, and notes; 1 Bouv. Law Dic., p. 310.

The refusal of the other two written charges requested by defendant might well be rested upon what we have said above. Besides, every proposition of law involved in them is embodied in substantially the same form in charges which were given at his request. The court was under no duty to repeat these instructions. — Koch v. The State, 115 Ala. 99, and cases there cited.

Affirmed.