Kelley v. State

I concur in the opinion in all respects except as to the ruling of the court in refusing to admit that part of the threat proposed to be shown by Ernest Kelley and attributed to the deceased, "that he knew the man that poisoned him and he was going to kill the son of a bitch, and that he had servedone term in the penitentiary, and would serve another one." (Italics supplied.) The defendant was entitled to prove the threat in its entirety, and the part rejected tended to illustrate the state of the deceased's mind and the malignity of the threat, and shed light on his conduct at the time of the fatal rencounter. The defendants were convicted and sentenced for life, and this ruling probably resulted in injury. The jury should have had the entire threat before them. Narrell v. State, 222 Ala. 145, 132 So. 47; Buffalow v. State, 219 Ala. 407,122 So. 633; Woods v. State, 20 Ala. App. 200,101 So. 314; Lee Carter, alias., etc., v. State (Ala. Sup.)145 So. 814,¹ this day decided. The judgment of conviction should therefore be reversed as to both defendants.

I therefore respectfully dissent in part.

¹ Post, p. 96.