Finney v. State , 10 Ala. App. 39 ( 1914 )

PELHAM, J.

Reversible error cannot be predicated upon the court’s action in excusing the juror Beverly, who was one of the special jurors drawn, and whose name appeared on the copy of the venire served on the defendant. It was shown that the juror was excused by the court before entering upon the trial, and before the jury to try the case had been selected, on account of the dangerous illness of a member of the juror’s family. — Code, §§ 7279, 7280; Barden v. State, 145 Ala. 1, 40 South. 948.

It was proper to show by the witness who found the tracks near the deceased’s body next morning after he was killed the night before that he examined the tracks and measured their length, and that about a No. 8 shoe would make that size Hack. — Davis v. State, 152 Ala. 82, 44 South. 545; Wilson v. State, 171 Ala. 25, 33, 54 South. 572.

Furthermore, this evidence could not be deemed prejudicial, as it was not shown what size shoe was worn by the defendant, or that the tracks testified to by the witness led in the direction of the defendant’s home.

No objection is shown to have been made to the questions eliciting the testimony of the witness Randy Dobbs, set out in the bill of exceptions, but, on the contrary, after the testimony of this witness is set out in narrative form, it is recited that “thereupon” the defendant moved to exclude the evidence of the witness. For aught shown to the contrary, the testimony was given in response to questions directly calling for it to which the defendant made no objection. When no objection is shown to have been made to the question, but only to the answer, it will be presumed that the an-SAver was responsive, and the objection conies too late. —S. W. Ry. of Ala. v. Maddox, 146 Ala. 539, 41 South. 9. A defendant cannot by delaying objections to questions thus speculate on Avhether the ansiver Avill be favorable or unfavorable, and predicate error upon the rulings of the court to objections made after the questions have been answered. — W. U. Tel. Co. v. Bowman, 141 Ala. 175, 37 South. 493; Dowling v. State, 151 Ala. 131, 44 South. 403.

The court, on motion of the defendant’s counsel, is shown to have excluded what the witness Clara Leach said about some one else having told her as to the identity of the voice she heard. What she testified to in this respect about the voice she heard being that of the deceased, as a matter of her judgment, based on her knowledge and experience of knowing the person and having heard his voice, was properly admitted in evidence, to be accorded such weight by the jury as they deemed it to be entitled to, taking into consideration the extent of her knowledge and the opportunity she had had of forming a correct judgment. A witness who is acquainted with facts and conditions upon which he can form a judgment is properly permitted to give his best judgment with respect to a matter of this kind establishing identity. — Williams v. State, 149 Ala. 4, 43 South. 720.

It was entirely permissible to allow the solicitor to show, on the cross-examination of the defendant, or by other Avitnesses, that the defendant had made threats a short time before the killing against some one in the neighborhood who had been shooting cows. The deceased in his lifetime lived in that neighborhood, and there was some evidence showing that shortly before the killing cows had been shot in that neighborhood, and that the deceased was connected with the shooting. In fact, it was the theory of the state that this shooting by the deceased of cows owned by the defendant or members of his family or his friends was the motive that actuated the killing, and there was evidence having a tendency to support this theory of the state.' The threats were directed at a class of persons that included the decedent, or to which he belonged under one phase of the tendency of the state’s evidence, and were not objectionable for indefiniteness. The admissibility of the threats was not affected by the mere fact that the decedent was not particularized by name. It was for the jury to determine whether decedent came within the scope of the threats and was referred to, and what probative force would be given to the threats.— Harrison v. State, 79 Ala. 29; Montgomery v. State, 160 Ala. 7, 49 South. 902; Morris v. State, 146 Ala. 66, 41 South. 274.

The evidence connecting the defendant Avith the commission of the offense Avas entirely circumstantial, and the Avife of the decedent, Avho alone, so far as the evidence shows, aside from the principals, witnessed the killing, testified that she recognized her husband’s assailant, and that it Avas not the defendant, but one Etheridge, Avho shot and killed her husband. Etheridge Avas examined as a Avitness for the state, and denied this, and we gather inferentially from evidence that he had been previously tried and acquitted of the charge. The Avife of the decedent testified that' the killing took place betAveen sundown and dark, and that she Avas on the front porch of the house; that her husband was in the yard cutting wood, and the man Avho shot him Avas on the other side of the yard fence, about 20 yards distant from her; that the man doing the shooting and another man ran off immediately after the shooting. She had known Etheridge for a considerable length of time, and was positive in her identification of him as the man who fired the shot that killed her husband. The defendant is not shown to have had any connection whatever with Etheridge, and no attempt was made to show a conspiracy existing between them to commit the crime. Counsel for defendant insists by argument contained in brief that, under this state of the testimony, the court was in error in refusing the general charge requested in writing for the defendant.

The record presents an unusual case. The motive or purpose any one may have had in committing the crime is anything but clearly shown, and the circumstances connecting the defendant with the commission of the crime as set out in the bill of exceptions, that purports to contain all of the evidence, if not properly characterized as weak and lacking in force and effect to lead the unbiased mind to a conclusion of guilt beyond a reasonable doubt, in face of the positive testimony of the decedent’s wife, are certainly not of such cogent force as to be impelling or impressive of the defendant’s guilt of the crime charged against him. Yet they are sufficient to require a submission of that question to the jury, and the court was not in error in refusing the general charge requested by the defendant.

The general charge in favor of the defendant is properly refused, if there is any evidence tending to show or affording an inference of guilt. — Turner v. State, 97 Ala. 57, 12 South. 54; Hargrove v. State, 147 Ala. 97, 41 South. 972, 119 Am. St. Rep. 60, 10 Ann. Cas. 1126.

Charge No. 2: “I charge you, if you believe the evidence of Mrs. Bell McDonald, you must acquit the defendant.” — singles out the testimony' of this witness and bases the right to an acquittal on the testimony of one witness to the exclusion of a consideration of the conflicting testimony of other witnesses affording a basis for a contra finding] and was properly refused. —Finch v. State, 81 Ala. 41, 1 South. 565.

The record does not show reversible error, and the judgment of conviction appealed from will he affirmed.

Affirmed.