Durden v. State

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The defendant was indicted for murder in the first degree, convicted for murder in the second degree, and sentenced to the penitentiary for a term of 15 years.

No matter what our opinion may be, in reference to the legality of the grand jury that found and returned the indictment against the defendant, and whether the defendant can here raise these questions by plea in abatement, we are precluded from a consideration thereof by the decision of the Supreme Court in the case of Babe Whitehead v. State, 90 So. 351.¹ This court is bound by the ruling of the Supreme Court.

The defendant complains at the ruling of the trial court in permitting the state to ask the state's witness Collins on redirect examination the following question:

"Was there anything said there in the presence of the defendant with reference to this man [deceased] being a negro or white man, or being kin to anybody?"

On cross-examination of this witness, he had detailed what had been said and done there, when the defendant and others had come up, and that he had word "from defendant that the man he wanted stopped was a yellow negro, and I took deceased to be a yellow negro at the time and stopped him." In the light of what the defendant had brought out on cross-examination this testimony was competent, moreover, it was clearly a part of the res gestæ.

Some eight or nine persons were jointly indicted for the killing of deceased, among them being the defendant, Dan Whitehead, Babe Whitehead, and others. The state insisted that the defendants formed a mob, and that, while some did the actual shooting, the killing was the result of a conspiracy entered into by the defendant and the parties that did the shooting to take the life of the deceased, or that the defendant either aided, abetted, encouraged, invited, or furthered the enterprise, that is the killing of the deceased, either by words, acts, or by conduct on his part, or such a nature or character as was calculated to and intended to bring about, or cause the procurement of the death of deceased. There was evidence offered by the state tending to show this was true. It was therefore competent, as tending to bear out the state's contentions of such a common design, for the state to show what was said by Dan Whitehead to the deceased, at the house of Collins on the afternoon of the day that deceased was killed. These sayings, separate and apart, might seem immaterial and unimportant, but as circumstances taken together they may have been indicative of the alleged plan of the defendant to take the life of deceased, and the fact that they were not uttered in the presence of the defendant did not necessarily make them objectionable. What was said and done among themselves, among the alleged coconspirators, is just as binding on the defendant as if he had been present and agreed thereto, if it was done or said in keeping with a previous agreement or common design. Toliver v. State, 142 Ala. 3, 38 So. 801.

There are numerous objections in the record to the introduction of statements made and things done by other members of the alleged mob, and these objections are predicated on the proposition that they are illegal, because not made in the presence of this defendant. These declarations and acts were of course inadmissible, except upon the theory of the existence of a conspiracy between the parties. The principle upon which such declarations are admitted is that the conspirators by the act of conspiring "have jointly assumed to themselves the attribute of individually so far as regards the prosecution of the common design, thus rendering whatever is said or done by any one in furtherance of that design a part of the res gestæ, and therefore the act of all." Of course it is necessary before such evidence can be admitted that a foundation should be laid by proof, prima facie sufficient to establish the existence of such a conspiracy. Hunter v. State,112 Ala. 77, 21 So. 65; McAnally v. State, 74 Ala. 9; Bonner v. State, 107 Ala. 97, 18 So. 226; Hudson v. State, 137 Ala. 64,34 So. 854; Thomas v. State. 133 Ala. 139, 32 So. 250; Crittenden v. State, 134 Ala. 145, 32 So. 273; Collins v. State, 138 Ala. 57, 34 So. 993; Matthews v. State,16 Ala. App. 514, 79 So. 507.

A community of purpose or conspiracy is rarely proven by positive, direct testimony; it is usually by circumstances. Morris v. State, 146 Ala. 66, 41 So. 274; Ferguson v. State,149 Ala. 21, 43 So. 16.

The witness Brooks, after giving the details of the killing of deceased by members of the alleged mob, was then asked by the solicitor this question, "After the shooting, was anything said?" The defendant objected to the question, which was overruled by the court, and the witness answered, "One of them said, ``There ain't no one knows anything about it,' " and the witness further answered, "One of them made the remark and said, ``That is the third son of a bitch that he had helped put out.' " Motion was made to exclude the answers, and overruled. In this ruling there was no reversible error.

It is true that after the common purpose has been accomplished, the subsequent acts of the accomplice are not admissible as evidence of the defendant's guilt (Everage v. State, 113 Ala. 102, 21 So. 404; Lowman v. State, 161 Ala. 47,50 So. 43), unless these acts are so intimately related in time and occasion to the major fact as to constitute a part of the one occurrence, in which event they are admissible as of the res gestæ. Newsom v. State, 15 Ala. App. 43,72 So. 579.

On appeal the burden is in all cases upon him who seeks the reversal of a judgment to show that the trial court committed error. Jackson v. State, 5 Ala. App. 306, 57 So. 594; Noel v. State, 161 Ala. 25, 49 So. 824.

It not appearing, therefore, that the declarations objected to were so far removed as not to constitute them a part of killing, the trial court will not be put in error for overruling the defendant's objection.

There was no reversible error in the refusal of the written charges requested by the defendant. Where they state correct propositions of law, they were fairly and substantially covered by the court's oral charge and the 23 written charges given at the request of the defendant.

Refused charges 1, 9, and 14 do not correctly state the law.

Refused charges 2, 3, 4, 5, 6, and 7 were properly refused.

"The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission * * * must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors." Section 6219, Code.

Charges 12 and 13 were properly refused. They single out a part of the testimony and incorrectly state the law.

Charge 8 is unintelligible.

Charge 15 is confusing and misleading.

Charge 16 is argumentative and misleading.

Charges 17, E, A-2, A-4, 11, and 19, if good, were covered by the court's oral charge.

Charge D is faulty in one respect at least in that it binds the state to the proof of a conspiracy on the part of the defendant and "the other defendants jointly indicted with him."

Charge 24 was properly refused. There was no evidence, tending directly or indirectly, to show that deceased was killed under circumstances constituting the offense of manslaughter in the first or second degree. The court should not charge the law on manslaughter when there is no evidence on which to base of rest the law. Babe Whitehead v. State, supra; Gafford v. State, 125 Ala. 1, 28 So. 406.

The evidence being in conflict, the affirmative charge was properly refused.

It does not appear in what connection the extract read by the solicitor from the Supreme Court report was used, or that its use in the solicitor's argument was in any wise injurious to the defendant. Irrespective of what the solicitor may have said or read to the jury, the oral charge of the court, afterwards given to the jury, clearly and correctly stated the law governing the trial of this case.

The use of the word "guilty" in the judgement entry could have no other meaning than the word "guilty," as the same was used in the verdict returned by the jury, and its use in the judgment entry was a clerical error and is self-correcting. Askew et al v. State (Ala.App.) 91 So. 911;² Holland v. State, 11 Ala. App. 134, 66 So. 126; Id., 191 Ala. 662,66 So. 1008; Kirk v. State, 13 Ala. App. 316, 69 So. 350; Brown v. State, 15 Ala. App. 611, 74 So. 733.

The judgment of the court, after a recital of the verdict of the jury, states that it is "considered and adjudged that the defendant is guilty as found by the jury." This was a sufficient adjudication of the defendant's guilt. Ex parte Hardeman v. State, 202 Ala. 694, 81 So. 656; Talbert v. State, 140 Ala. 96, 37 So. 78, and authorities there cited.

We find no error in the record, and the judgment appealed from is affirmed.

Affirmed.

¹ 206 Ala. 288.

² Ante, p. 345.