Lewis v. State , 13 Ala. App. 31 ( 1915 )

THOMAS,

(1) Tbe caption of tbe record showing tbe organization of the court at which tbe trial was bad is in the usual and approved form, except that, instead of stating positively whether tbe term at which tbe court was held was a regular, special, or adjourned term of tbe court, it states it alternatively, as follows : “At a regular, special, or adjourned term of tbe circuit court of Henry county, Ala., etc.

However, it appears from tbe judgment entry that tbe date of tbe trial was on March 14, 1914, which we judicially know to be during tbe time prescribed by law for tbe regular term of tbe circuit court of Henry county, and, consequently, that a trial on that date by that court could not be at a special or adjourned term, but only at a regular term. — Gen. Acts 1911, p. 728. We are further fortified in tbis position by .the fact of tbe absence in the record of any order for a special or adjourned term.

(2) Tbe evidence outside of the defendant’s proved admissions tending to connect him with tbe commission of tbe homicide charged was entirely circumstantial; since no one saw tbe killing, and tbe first known of it was when tbe deceased Avas found dead in tbe public road by a traveler passing along some hours after tbe killing. The state first introduced as a witness one W. W. Oliver, the son of deceased, who, after testifying that the defendant came to- witness’ house that morning before the killing that afternoon on an occasion when witness’ father, the deceased, was present, was then asked by the state, over the objection and exception of defendant, the following questions, to„ which he gave the following answers: “Q. What did the defendant say to him [meaning to witness’ father] ? A. He told my father he was going to whip me. Q. What did your father say? A. He told him he would have to whip him first. Q. What did he say to you before he left? A. He said he was going home, and he was coming back, and when we met again I would regret what I had done. [Witness further testified that his father was still present and heard defendant make the above statement to- witness.] Q. How long was it from the time your father told him he would have to whip him first before he [defendant] told you that? A. To the best of my judgment, it was about three minutes.”

These conversations took place, as stated at witness’ house in the morning about 10 or 11 o’clock, after which defendant left, and returned again about 1 or 2 o’clock in the afternoon with a gun in his buggy. At that time witness’ father, who was still at witness’ house, and had just hitched up his horse preparatory to driving off, also had his gun in his buggy. The two (defendant and deceased) then drove off down the road in the same direction at the same time, one in one buggy, and one in the other, with their respective guns, and in about 30 minutes after they left witness heard the report of a gun in the direction in which they had gone.

Even assuming that the conversation which took place that morning at witness’ house between defendant and deceased and the witness, before detailed, was inadmissible, as contended, as a part of the res gestae, because not sufficiently connected in point of time to. show it to be a part of a continuous, transaction (but see Jordan v. State, 81 Ala. 20, 1 South. 577; Armor v. State, 63 Ala. 173; Fallin v. State, 86 Ala. 15, 5 South. 423), yet, it was certainly admissible for the purpose of showing that what defendant said to. witness was intended as a declaration of hostility towards deceased, and was explanatory of defendant’s purpose in returning later with a gun.—1 Mayf. Dig. 837; Maxwell v. State, 11 Ala. App. 53, 65 South. 732; Campbell v. State, 133 Ala. 87, 31 South. 802, 91 Am. St. Rep. 17; Maddox v. State, 159 Ala. 58, 48 South. 689.

When, after defendant had made the threat to whip deceased’s son, and after deceased had told defendant that before he (defendant) could whip his (deceased’s) son he (defendant) would have to whip him (deceased) first, the defendant then said that he (defendant) was going home and was coming back, and that when he came back the son would regret what he had done, it— what defendant last said — amounted to a declaration of hostility towards deceased, who had announced that he would take his son’s part, as well as it amounted to a threat against deceased’s son. It is always competent to prove any threats or declarations of hostility made by the person charged with the homicide against the person slain. In this case such a fact would be a circumstance which, in connection with the other facts and circumstances of the case we have detailed, would tend to show that defendant, and not some one else, killed deceased, and that such killing was done feloniously, and not in self-defense, as the defendant claimed.—Hudson v. State, 61 Ala. 333; Johnson v. State, 87 Ala. 39, 6 South. 400; Barnes v. State, 88 Ala. 204, 7 South. 38, 16 Am. St. Rep. 48; 1 Mayf. Dig. 837. Consequently, there was no error in the action of the court in overruling the mentioned objections of defendant.

(3-6) The defendant introduced a number of witnesses who testified to his general good character. The state, over the objection and exception of the defendant, was permitted to ask on cross-examination each of these character witnesses this question, “Is it not a fact that the defendant’s general character in the community in which he lives is that of a drunkard?” Every one of these witnesses answered, “Yes, sir,” without qualification or equivocation, except the last one, who answered evasively, “Yes, sir; he gets drunk.” The defendant separately and severally objected to and moved to exclude each ansAver as and when given by the witnesses upon the same grounds as were assigned in objections to the question, and reserved in each instance an exception to the action of the court in overruling the motion. If, instead of objecting to the ansAver of the last witnesses as a whole, the defendant had objected to and moved to exclude that part of it to the effect that defendant “gets drunk,” and had assigned proper grounds therefor, the court would have committed error in not sustaining such objection and motion; since such part of said answer was clearly inadmissible for several reasons, to wit: First, because it Avas not responsive to the question; second, because it was the statement as a matter of fact, and not as a matter of reputation, of a particular act or acts of conduct on the part of defendant within the personal knowledge of the Avitness; third, because the fact, if it be a fact, that the defendant occasionally gets intoxicated, is not evidence that his character is bad, and does not tend to impeach the testimony of a witness deposing to his good character.—Maxwell v. State, 11 Ala. App. 53, 65 South. 732. On the other hand, habitual drunkenness, we know as a matter of common knowledge, does, as a rule, tend to dethrone character and to destroy the moral fiber and make-up of a man, and that, if persisted in, it will do so. This truth is recognized by both the divine (1 Corinthians, vi, 10) and human laws.—Const. §§ 173-175; Code, § 3793, subd. 6; Code, § 7843, subd. 5; State ex rel. Attorney General v. Savage, 89 Ala. 1, 7 South. 7, 183, 7 L. R. A. 426; Campbell v. State, 23 Ala. 66.

(7) It was entirely competent, therefore, for the state to show on the cross-examination of defendant’s said character witnesses, and as tending to impeach them, that the defendant’s general character or reputation in the commupnity in which he lives was, to the knowledge of the witnesses, that of a “drunkard” — the term used in the question of the solicitor — as that term, “drunkard,” means, according to the definition of Webster, not one who occasionally gets drunk, but “one who habitually drinks strong liquors immoderately; one whose habit is to get drunk; a toper; a sot.”—State ex rel., etc., v. Savage, 89 Ala. 1, 7 South. 7, 183, 7 L. R. A. 426.

(8, 9) It is always permissible, on cross-examination of a witness who has testified as to the good character of a person, to ask whether the witness had not heard of certain enumerated acts of the party which tend to show that his character is not good; and so long as such inquiries and the answers thereto are confined to reputation or rumors as to such matters, which the witness has heard, and are not extended so as to involve a statement by the witness of his personal knowledge of the truth of the stated act or acts which gave rise to the rumor or reputation, they are unobjectionable.—Maxwell v. State, 11 Ala. App. 53, 65 South. 732, and cases cited; Hawes v. State, 88 Ala. 37, 7 South. 302; Jackson v. State, 78 Ala. 471; Smith v. State, 165 Ala. 55, 51 South. 610; De Arman v. State, 71 Ala. 351; Jones v. State, 76 Ala. 81; Jackson v. State, 147 Ala. 699, 41 South. 178; Noel v. State, 161 Ala. 25, 49 South. 824. This rule was not violated in any of the questions asked by the solicitor or in any of the answers given by the witnesses, except the last part of the one given by the last witness, who, as before pointed out, stated: “Yes, sir; he [defendant] gets drunk.’’—Maxwell v. State, supra. For reasons hereinbefore pointed out, the court cannot be put in error for not excluding this answer; it having been objected to as a whole, and the last part only being objectionable, and the proper grounds of objection not having been assigned.

(10) Besides, we may add that, even if the objection had been properly made, so as to put the court in error here on the ruling, it does not follow that a reversal would necessarily result. It would not so result unless we would be able to- say that the error probably injuriously affected defendant’s case.—Rule 45 of the New Supreme Court Rules in 175 Ala. xxi, 61 South, ix. In view of the state of the proof, it occurs to us that it Avould not; since it was properly in evidence as shown, without dispute and from the lips of defendant’s own witnesses, that he bore the general character of being a drunkard. This being so, the statement of the milder fact that he gets drunk could hardly have prejudiced his case.

We have discussed only the points insisted upon in briefs; but Ave have examined the whole record, and find no error.

The judgment is therefore affirmed.

Affirmed.