Thomas v. State

The appellant was indicted for murder in the first degree, convicted of murder in the second degree, and sentenced to the penitentiary for a term of 10 years. The killing appears to have been the result of a contention on the part of appellant and deceased, in reference to a path that led through deceased's back yard, and near or close to a toilet. The contention of the state being that appellant had been warned not to travel this path, and that of the appellant that it was used generally by the public, and that he had not used the path after he had been warned not to do so. While the witness Wallace Glenn did state at first that he did not know of his own knowledge that the appellant traveled this pathway, on further questioning by the solicitor he stated, over the objection of the appellant, that he saw appellant travel the path leading by the toilet on the day prior to the shooting. This testimony was relevant as tending to throw light on the inquiry as to who was at fault in bringing on the difficulty. In view of the uncontradicted testimony that at the time of the shooting the deceased first called to appellant and told him that he wanted to see him about traveling this path, and the testimony that he traveled it the day before, all taken together may not have been considered by the jury unfavorable to the defendant, in his contention that he was free from fault in bringing on the difficulty, and as tending to show that the path was used generally.

There is no merit in the contention that the court committed error in permitting the witness Wallace Glenn to state that after he saw appellant shoot deceased he then shook hands with appellant. Witness had already stated he saw the shooting, and that he afterwards shook hands with appellant.

That the witness Thelma Glenn heard about the trouble afterwards was patently objectionable.

The objection of the solicitor to the question, "What did he say to you?" propounded to the witness Crump, was properly sustained. This was not shown to be a conversation which could be a part of the res gestæ, neither was it a part of a conversation that had been brought out by the state. The state's witness Thelma Glenn merely stated "that she did not hear the conversation between witness and deceased."

There was no answer to the question, "But Thomas kept one of those things [pistol] around him that day?" Consequently appellant cannot complain, and this may be said of other questions contained in the record, of which complaint is here made.

It was relevant and material for the solicitor to show that about the time of the shooting the appellant had his pistol concealed.

Leo Glenn, the 11 year old son of the deceased, testified that he was not present at the time of the shooting, but was at the depot and heard the shots, and went to the place in a few minutes where his father lay dead, and that the defendant then came along. The state thereupon asked the witness:

"State whether or not when you got to your father's body and saw Mr. Thomas coming down you picked up two pieces of brick, and if Mr. Thomas in the presence of Mr. Crump there at your father's body told you if you throwed those two bricks at him that he would shoot you as full of holes as he had your daddy."

This question was objected to by the defendant as not being a part of the red gestæ, and was not in rebuttal. The objection being overruled, witness answered, "Yes, sir" and motion made to exclude the answer, and the same grounds of objection as had been interposed to the question. The defendant had testified on cross-examination that such an incident had not taken place. This statement attributed by the testimony was no part of the homicidal act nor of the circumstances so immediately attending the act as to constitute it a part of the res gestæ. But evidence may be capable of different constructions, and we cannot say that this had no tendency to show defendant's hostility at the time of the declaration, and from that the jury may have inferred hostility at the time of the killing. Charlie Carter v. State, 205 Ala. 460, 88 So. 571; Smith v. State, 183 Ala. 10, 62 So. 864; 1 Wigm. on Evidence, § 396; McManus v. State, 36 Ala. 285; Henderson v. State, 70 Ala. 29.

The court excluded the statement of the solicitor from the jury to which appellant objected. It would be sufficient to say that there was no motion made to exclude the argument of the special prosecutor, which was objected to, from the jury, but a portion of the testimony argued was not excluded from the jury when offered, and the objection of the appellant, being as a whole to that part of the evidence that was admitted and that which was excluded cannot avail. He should have objected separately to the argument in reference to the excluded testimony. Kinsaul v. State, 8 Ala. App. 405, 62 So. 990; 4 Michie Dig. p. 323.

There being no error in the record, the judgment of conviction must be affirmed.

Affirmed