Gallant v. State , 167 Ala. 60 ( 1910 )

MoOLELLAN, J.

About 2:30 a. m., February 24, 1909, a destructive explosion was set off beneath a house in which Charles Gallant, his wife, Mrs. Alf. Gallant, and Mrs. Tal ford had their abode, and in which they were then asleep. The house urns greatly damaged, and Charles Gallant was killed, and his wife, who slept beside him, was painfully injured. Mrs. Alf Gallant and Mrs. Tal ford were uninjured, occupying as they did a room across the hallway from the room in which Charles Gallant and his wife were w'hen the explosion occurred, and immediately beneath which (room) the explosive Avas set off. This house was before his death the abode of Alf. Gallant. His death occurred November 30, 1908, three months prior to the tragedy in question. He had two children then living, viz., Howard (the defendant) and Bessie, now Mrs. Talford, adults when Alf. Gallant died. His widow was their stepmother. Charles Gallant, the deceased, was a cousin of the Alf. Gallant children.

Our statute (Code 1907, § 7081) provides that every homicide “* * * perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree. * * *” The corpus delicti was incontestably proven.

The only issue was the identification of the defendant as a guilty agent. This was undertaken by the prosecution, upon the theory that the defendane entertained ill will and malevolent purpose toward Mrs. Alf. Gallant and Mrs. Talford, or that he yielded in the act to a mercenary motive predicated upon the assumption .that if he survived Mrs. Alf. Gallant and Mrs. Talford, or either of them, he would succeed in property rights in the estate of Alf. Gallant, deceased, not enjoyable by him while they lived, or that he entertained the vengeful purpose to prevent the enjoyment by'Mrs. Alf. Gallant of the property, in whole or in part, claimed and possessed by her as the widow of Alf. Gallant, deceased, defendant’s father. The evidence tending to identify defendant as a guilty agent was circumstantial. It of necessity required and took a wide range. Numerous objections by defendant were interposed to the reception of testimony tending to support the stated theory of the prosecution. These objections are entirely too numerous to admit of separate treatment in this opinion. Each one has been with great care considered, and no prejudicial error appears to have attended the rulings of the court in dealing with the great number of circumstances thus offered by the state, pointing to the conclusion, if the jury so found, that the defendant was motived, as stated, to commit and did have part, at least, in the commission of the crime charged in the indictment. If in point of fact the title of the widow to the property left by Alf. Gallant was not of such character as to cast the estate therein to defendant’s advantage, if he survived her, did not, of course, render inadmissible evidence tending to show that defendant entertained a different, though erroneous, view— a view in accord with the prosecution’s theory that mercenary motive, entertained by defendant, inspired the act resulting in Charles Gallant’s death. The insistence for defendant that the doctrines of Clarice’s Case, 78 Ala. 474; 56 Am. Rep. 45, have application to this case cannot be approved. There the homicide was the result of mistake in the identity of the intended victim; and this court announced the well-recognized principle that the killing by mistake of one not intended subjects the accused to the same accountability as if he had slain the person intended. It .ivas further ruled therein that, where the mistake in identity was a fact supported by tendencies of the evidence, evidence of ill will entertained by the accused toward the person intended to be slain but who, because of mistake in identity, escaped, is admissible. The guilt of this defendant under the evidence in this record rests upon broader ground. Aside from anything else, the act causing Gallant’s death was one “greatly dangerous to the lives of others, and evidencing a depraved mind, regardless of human life.” A room of a dwelling from the sills through the roof was demolished, a large hole in the ground beneath the house was forced by the explosion, and a part of the porch of the house was Avrecked. That the force — its scope in effect — of the explosion may have been miscalciliated or the point of location of the explosion may have been the result of error in judgment if the death of Mrs. Alf. Gallant and Mrs. Talforcl, or either, was the purpose of the act, cannot mitigate the extreme hazard of the act to all within the house or exculpate to any degree the agent or agents committing the act. That the consequences of such an act were not more direful cannot avail to excuse the guilty agent or to mollify the measure of that guilt. — Washington’s Case, 60 Ala. 10, 31 Am. Rep. 28, and the statement of principle in Lewis’s Case, 96 Ala. 10, 11 South. 259, 38 Am. St. Rep. 75, take account of the principle which, we think, applies to the case at bar.

The facts that defendant knew that deceased slept in the room beneath which the explosion was set off, that their relations were amicable and intimate, that he knew where Mrs. Alf. Gallant and Mrs. Talford slept, across the hallway from the room in which the deceased slept, were, of course, considerable by the jury in determining the guilt vel non of the defendant, in determining whether he had part in the act killing his friend, and not physically harming the two women toward whom, the evidence tended to show, he entertained ill will, if not evil purposes.

It is a condition precedent to the admission of evidence of the acts of dogs in trailing human beings that the dogs iti question were trained to take the scent of human beings. — Hodge v. State, 98 Ala. 10, 13 South. 385, 39 Am. St. Rep. 17. While the evidence showing the qualifications of the Lucile dogs was not as full as it might have been, yet we cannot pronounce the reception of the evidence by the court as erroneous. Nor is there merit in the insistence of counsel for appellant that a witness was allowed to institute a comparison between the Lucile dogs and others he (the witness) liad seen perform. The statement of the witness in this connection went to show his qualification from observation to have and entertain an opinion as to when a dog was trained to track human beings, and did not involve a comparison of the Lucile dogs and others, as was the case on Simpson’s Trial, 111 Ala. 6, 20 South. 572. The court excluded from the jury by charge the evidence of the acts of the Bessemer dogs.

Evidence of, the conduct of the defendant in coming to, at what hour, and about, the scene of the tragedy, was well admitted. His place of abode was not distant. His kinship or relation to those in the damaged house was to some quite close — to others, more remote. To the deceased he was shown to have been certainly most friendly. Whether he came to the scene promptly after knowledge of the event was a circumstance properly considerable by the jury in determining the issue of his guilt. Whether he appeared nervous, and, if so, whether that indication of excitement or disturbance proceeded from a consciousness of guilt or from the natural impulse such an event would inspire, were matters for admission to and consideration by the jury.

The evidence tending to show that defendant was intoxicated upon the occasion when he was said to have made statements pertinent to the ill will ascribed to him by the evidence for thé state was properly admitted as bearing upon his credibility as a witness in the denial by him of the statements attributed to him while so intoxicated.

The extent and character of the injury suffered by Mrs. Charles Gallant was relevant to show the scope and effect of the ciiminal act producing her husband’s death while he slept beside her. The volume of the unlawful force put in motion was a pertinent fact reflecting the criminal purpose and reckless disregard of life-to which we have before referred.

Those features of the evidence tending to show a mercenary spirit, on the part of the defendant, in respect of the property left by his father upon his decease — to show his contentions in reference thereto — his acts in that regard, were properly allowed to go to the jury for their consideration in the premises. They may have-consisted with righteous motives, but it was the jury’s province to find the truth from all the facts and circumstances.

Troy Kennedy was not on trial, though he had been indicted for the offense of which the defendant now stands convicted. Where Kennedy stayed on the night of the tragedy ivas obviously immaterial when offered to he shown by the defendant. It was not an effort to. elicit evidence tending to show that another committed the crime. — McDonald v. State, 165 Ala. 85, 51 South. 629.

We see no error in the refusal to exclude the argument of the solicitor. It but stated his relation to organized society, and his duty in the premises.

No judicial error appearing, the judgment is affirmed.

Affirmed.

Simpson, Anderson, and Mayfield, JJ., concur.