Jarrell v. State , 35 Ala. App. 256 ( 1949 )

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The following charges were refused to defendant:

"8. The court charges the jury that unless you are satisfied from the evidence beyond a reasonable doubt that the defendant intentionally fired the shot that killed the deceased you cannot find the defendant guilty of murder in either degree or of manslaughter in the first degree."

"11. The court charges the jury that if under the evidence in this case you are satisfied that the shot that killed the deceased was fired accidentally then you cannot convict the defendant of any offense included in the indictment."

"15. The court charges the jury that the guilt of the defendant is established, if at all, by circumstantial evidence; and, before you can convict on such evidence it should not only point him out beyond all reasonable doubt as the guilty man, but be inconsistent with any reasonable theory as to his innocence." This is the second appeal of this case. Jarrell v. State,251 Ala. 50, 36 So.2d 336.

After remandment of the cause by the Supreme Court, the appellant was convicted of murder in the second degree.

On review of the former appeal, Justice Lawson delineated the evidence with considerable care and in much detail. In the main the proved facts appear in the instant record without material change, with the exception that the defendant did not testify in his behalf at the first trial. Statements and declarations which he made to others, after the death of his wife, appear as a part of the description of the facts in the former opinion. This constituted in a large measure the effect of his testimony at the trial of instant concern.

We entertain the view that the facts incident to the testimony of the accused in the case at bar do not alter the factual issues to the extent that the general affirmative charge was due the appellant.

We think, also, that we would be out of harmony with the holding in the former opinion to here declare that the court was in error in denying the motion for a new trial.

Appellant's counsel asked two witnesses several questions by which he sought to show that the deceased had a fainting spell about three days prior to the time she died and that she was subject to such spells. It is urged that this proof would have supported the defendant's statements that he thought his wife had fainted on the night of her death.

We cannot see the materiality of this inquiry. In any event, the appellant testified, without objections, that his wife was afflicted in this manner and that she had been under a physician's care for the ailment. It did not, therefore, relate to any disputed matter of evidence.

The refusal to admit the proof in the first instance, if error, was rendered harmless to the accused by the subsequent disclosure of the facts in substantial effect. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix; Pressnall v. State,16 Ala. App. 72, 75 So. 278.

In connection with the direct examination of appellant's sister, this occurred:

"Q. In the early morning of August 26th did your brother, Seaborn Jarrell, come to your home? A. Yes, sir.

"Q. Did he make a statement to you?

"Mr. Boyd: We object, if the Court please.

"The Court: Sustained."

Unquestionably the court could have, with legal propriety, allowed the witness to answer "yes" or "no." However, we are not authorized to charge error for this failure. The burden is on appellant to show that error was prejudicial and harmful to his substantial rights. Garrett v. State, 248 Ala. 612,29 So.2d 8; Stallings v. State, 249 Ala. 580, 32 So.2d 236; Brown v. State, 33 Ala. App. 152, 31 So.2d 652.

To afford full review, counsel should have pursued the inquiry further and then advised the court what answer was expected. The materiality of the matter did not appear from the content of the question. Sanders v. State, 202 Ala. 37,79 So. 375; Stallings v. State, supra; Berry v. Dannelly, 226 Ala. 151,145 So. 663.

In connection with this same visit the appellant's mother testified that the defendant told witness that his wife had fainted. On motion by the solicitor, the court excluded the statement.

It is cogently urged in brief of counsel that this evidence should have been allowed, not as an attempt to establish the truth of the assertion, but rather to support the contention of appellant that he thought that his wife had fainted. In this aspect the insistence is made that the admission of the statement would not have done violence to the self-serving declaration rule or the hearsay doctrine.

A "self-serving declaration" is a statement made out of court which is favorable to the interests of the declarant. Unless, for some recognized reason, it comes within the exception to the general rule, such a declaration is not admissible in evidence when tendered by the favored party, if not a part of the res gestae. The prime objection to this character of proof is that it does violence to the hearsay rule. Further, it opens the door to the introduction of untrustworthy declarations and permits a party to manufacture his own evidence.

Of course, it cannot be successfully contended that the statement of instant concern was a part of the res gestae. We hold that it amounted to a self-serving declaration. It was susceptible of an inference that, as an afterthought, the appellant was building up a false factual structure which was favorable to his defense. The effect of its admission would have been to permit the accused, by proof of his own subsequent declarations, to make evidence for himself.

No facts had preceded in the proof that would have the effect of exempting the matter from the general rule of nonadmissibility. We hold, therefore, that it was properly disallowed. Hall v. State, 40 Ala. 698; Holmes v. State,136 Ala. 80, 34 So. 180; German v. State, 181 Ala. 11, 61 So. 326; Pollard v. State, 12 Ala. App. 82, 68 So. 494; Key v. State,8 Ala. App. 2, 62 So. 335; Ray v. State, 29 Ala. App. 382,197 So. 70.

Over general objections of counsel the court permitted the State to prove by the appellant on cross examination that his wife obtained a divorce from him on the grounds of cruelty.

It appears that the couple had subsequently remarried and were living together as man and wife at the time of decedent's death.

The evidence in this case is wholly circumstantial. When this is the factual situation, the question of motive is a matter of very material concern. Harden v. State, 211 Ala. 656,101 So. 442; Jones v. State, 13 Ala. App. 10, 68 So. 690.

In the case of Earnest v. State, 21 Ala. App. 534,109 So. 613, 614, this court said: "As to showing a motive for the commission of an offense, the law says it is not necessary in order to prove the crime; but evidence of motive is always admissible. In other words, it is permissible in every criminal case to show that there was an influence, an inducement, operating on the accused, which may have led or tempted him to commit the offense. It may spring from the lust of gain, or the gratification of an unlawful passion, from animosity, ill will, hatred, or revenge. The extent or magnitude of such motive, whether great or small, is also a proper inquiry. The rulings of the court upon this subject are free from reversible error."

The fact that the appellant and deceased had remarried, and thus evinced a reconciliation of their former domestic discord, may have rendered the evidence inconclusive and impotent on the question of motive. This, however, went to its probative value rather than to its admissibility. We hold that the proof was properly allowed. Baalam v. State, 17 Ala. 451; Duncan v. State, 88 Ala. 31, 7 So. 104; Fowler v. State, 155 Ala. 21,45 So. 913; Streety v. State, 165 Ala. 71, 51 So. 415; Brothers v. State, 236 Ala. 448, 183 So. 433; McDowell v. State, 238 Ala. 101,189 So. 183; Vaughn v. State, 25 Ala. App. 226,144 So. 458; Kozlowski v. State, 32 Ala. App. 453, 27 So.2d 811.

Complaint is urged that on redirect examination the accused was not allowed free privilege of explaining the circumstances which related to the divorce matter.

It is a legal truism that if a party brings into the evidence a part of a transaction, opportunity should be afforded the effected person to give explanation with reference thereto. In the light of this familiar rule we have given due consideration to the record in this aspect. It appears that on cross examination the appellant, without objections, gave substantially all the information that was sought to be shown by him on redirect. This being true, he was not left without the privilege of proof of the facts about which complaint is made. Supreme Court Rule 45; Mathis v. State, 15 Ala. App. 245,73 So. 122.

The solicitor failed to adhere to the rule when he was cross examining some of the appellant's character witnesses. Instead of asking them if they had not heard of certain prior misconduct on the part of the accused, counsel framed his questions in this form: "Isn't it a fact", etc.

We discussed this rule of procedure at some length in the case of Mullins v. State, 31 Ala. App. 571, 19 So.2d 845. Clearly the rule therein pronounced was not followed in the instant case. We will look to the record to determine whether or not injury inured to the rights of the accused. Brown v. State, supra; Garrett v. State, supra; Stallings v. State, supra.

It is there disclosed that on the comparatively few occasions when objections were interposed and overruled by the court the witnesses replied in a manner that was not prejudicial to the defendant. Minto v. State, 8 Ala. App. 306, 62 So. 376; Murray v. State, 17 Ala. App. 253, 84 So. 393; Supreme Court Rule 45.

We come now to consider the written instructions which were refused to the appellant.

We have hereinabove illustrated the propriety of the refusal of the general affirmative charge.

Those numbered 6, 7, 9, 12, 13, and 22 are each substantially covered by the court's oral charge or given written instructions. Title 7, Sec. 273, Code 1940; Gettings v. State,32 Ala. App. 644, 29 So.2d 677.

Instruction number 8 was properly refused. Scott v. State,211 Ala. 270, 100 So. 211; Fowler v. State, 155 Ala. 21,45 So. 913; Bailey v. State, 133 Ala. 155, 32 So. 57; Goodman v. State, 15 Ala. App. 161, 72 So. 687.

Refused charge number 10 is not predicated on the evidence. Edwards v. State, 205 Ala. 160, 87 So. 179; Jones v. State, 209 Ala. 655, 96 So. 867; Scott v. State, 34 Ala. App. 18, 37 So.2d 670.

There was no error in refusing charge number 11. Campbell v. State, 13 Ala. App. 70, 69 So. 322; Anderson v. State,18 Ala. App. 429, 93 So. 68; Wilson v. State, 32 Ala. App. 591,28 So.2d 646; Ledbetter v. State, 34 Ala. App. 35, 36 So.2d 564.

We find that charge number 14 was approved in Pickens v. State, 115 Ala. 42, 22 So. 551. Error was not predicated on its refusal in Hannigan v. State, 131 Ala. 29, 31 So. 89, and Spencer v. State, 228 Ala. 537, 154 So. 527. In the latter two cases, however, the court pointed out that the charge was abstract, since the evidence was not entirely circumstantial.

In the recent case of Parsons v. State, 251 Ala. 467,38 So.2d 209, our Supreme Court reviewed a very similar charge. Justice Foster, writing for the court, cited a number of authorities to support his conclusion that charges of this import should not be given in cases where the evidence is not entirely circumstantial.

As we have indicated, in the instant case the State relied for a conviction on evidence that was entirely circumstantial. The court in his oral charge omitted to instruct on the doctrine which the charge purports to convey; nor are there any given instructions which refer to the rule in any aspect.

It inescapably follows that we must base error on the court's refusal of charge number 14.

Charge number 15 is misleading and lacking in exactness. Pickens v. State, 115 Ala. 42, 22 So. 551.

Instruction number 17 contains a typographical error. This is unquestionably due to the fault of the typist. However, the fact remains that we are unauthorized to charge error for its refusal. Title 7, Sec. 273, Code 1940; Fealy v. City of Birmingham, 15 Ala. App. 367, 73 So. 296; Louisville N. R. Co. v. Lile, 154 Ala. 556, 45 So. 699; Walker v. State, 33 Ala. App. 614, 36 So.2d 117.

We have omitted to respond to some questions which are presented for our review. They will not likely reappear in their present form at another trial or they are of minor merit.

For indicated error, it is ordered that the judgment below be reversed and the cause remanded.

Reversed and remanded.

BRICKEN, P.J., not sitting.

On Rehearing.