Kennedy v. State , 182 Ala. 10 ( 1913 )

SOMERVILLE, J.

Defendant was voluntarily present at the time and place of the fatal affray in which his son and grandson were shot to death by John Pearce and others. He knew of the quarrel between Pearce and deceased, and knew of Pearce’s purpose with force and arms to carry his wagons over the disputed section of the road, and knew also of his son’s purpose to resist that aggression to the extent of taking life if need be. Under these ominous conditions defendant remained on the ground and continued a dispute previously begun, and actively aided the Pearce party in the violent removal of the obstruction and in the forcible passage of the disputed roadway. Whether he was a guilty participant in the killing of his son and grandson, which then and there followed, was, under the circumstances shown, very clearly a, question of fact for the jury, although reasonable doubts of his felonious intentions are strongly suggested by some phases of the evidence. The trial court did not err in refusing the affirmative instructions requested by defendant. — Amos v. State, 83 Ala. 1, 3 South. 749, 3 Am. St. Rep. 682.

The fact that John Pearce handed to the witness a small bullet box with a picture of a bullet on it, just before starting to the scene of the affray, even if irrelevant so far as this defendant is concerned, was entirely harmless and Avithout prejudice, since it added nothing of importance to Pearce’s otherwise plainly evident intention to use firearms contingently in forcing a passage over the road. The material fact was that he Avas armed ' and ready for a difficulty, and this was knoAkn to defendant.

The fact that deceased, Shelton Kennedy, was, when killed, in possession of the field through which the road ran at the place of the killing Avas a circumstance properly allowed to go to the jury as a part of the res gestae. —Parsons v. State, 179 Ala. 231, 60 South. 864. It of course did not of itself tend to show that defendant or his companions Avere unlawful aggressors, but it was competent in explanation of the presence there of the tAvo deceased men, and of their animus during the affray.

So, also, although defendant Avas not on trial for the killing of Sarge Kennedy, the tAvo killings were parts of a single transaction, and Avere in fact inseparable. Each was of the res gesta; of the other, and every fact and incident illustrative of the one was competent also in illustration of the other. — Smith v. State, 88 Ala. 73, 7 South. 52. Hence the fact that the bullets in Sarge Kennedy’s body entered straight from his back was properly admitted in evidence as a part of the whole transaction.

Defendant’s statement, made just after the killing, that “the boy started to run, and I started to save the boy,” was properly admitted for whatever it was Avorth in illustration of defendant’s attitude and intentions during the affray. It was probably beneficial to him, and cannot be regarded as a ground of reversal.

The several charges refused to defendant are too palpably bad to justify discussion.

We find no reversible error in the record, and the judgment will be affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not Sitting.