Opinion
6 Div. 585.
January 4, 1923. Rehearing Denied January 25, 1923.
Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.
Frank L. Butts, of Tuscaloosa, for appellant.
The lower court erred in allowing a witness who had testified that he saw the defendant bring home some shells to then testify, over the objection of the defendant and without further testimony tending to establish their identity, that these were the same shells that he saw the defendant leave the house with three days later. 156 Ala. 62, 47 So. 52. The defendant should have been allowed to ask the question, "Are you telling the truth about what Mack [the defendant] told you about killing this man?" where the question was asked by counsel for the defendant on cross-examination of a state's witness, who himself was then under arrest, charged with the identical crime for which the defendant was being tried, and without whose testimony no conviction could have been had by the state. Const. Ala. 1901, art. 1, § 6; Code 1907, § 4017; 154 Ala. 36, 45 So. 697, 15 L.R.A. (N.S.) 493, 129 Am. St. Rep. 18, 16 Ann. Cas. 362. The defendant's motion to exclude the evidence from the jury should have been sustained, since the evidence was wholly circumstantial, and did not exclude every reasonable hypothesis of the defendant's innocence. 68 Ala. 539; 73 Ala. 526; 94 Ala. 84, 10 So. 528; 121 Ala. 36, 25 So. 690; 12 Cyc. 488, 594; 25 Miss. 584. Defendant had the right to have his counsel read excerpts from opinions of the Supreme Court to the jury. 78 Ala. 436. Charges A and C, requested by defendant, should have been given. Authority supra, and 160 Ala. 31, 49 So. 810; 63 Ala. 234; 116 Ala. 445, 23 So. 40; 108 Ala. 571, 18 So. 813; 115 Ala. 14, 22 So. 611; 12 Cyc. 627. The court erred in its failure to instruct the jury, on the motion of the defendant, as to the law of manslaughter in the second degree, where the only evidence as to how the shooting occurred tended to show that the shots came from a place of concealment used by huntsmen for shooting wild game. 109 Ala. 70, 20 So. 103; 112 Ala. 64, 20 So. 925; 109 Ala. 70, 20 So. 103; 99 Ala. 148, 153, 13 So. 550; 12 Cyc. 611. It was error to overrule appellant's motion for a new trial, where evidence was presented to the court which tended strongly to show that the state's chief witness had confessed or admitted that he and not the defendant committed the crime, and where errors of the court committed on the trial were pointed out by the motion. 44 Ala. 611; 16 Corpus Juris, 1121, 1183; 29 Cyc. 881; 65 So. 125; (Miss.) 32 So. 915.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
It is not error for a nisi prius court to refuse to permit counsel to read law to the jury. 133 Ala. 183, 31 So. 854; 38 Cyc. 1481. Charge A is not a correct statement of the law. Charge C is rendered bad by the use of the word "supposition." 111 Ala. 15, 20 So. 634; 105 Ala. 43, 16 So. 758; 97 Ala. 18, 14 So. 327; 52 Ala. 24; 50 Ala. 112. There was no evidence justifying a verdict of manslaughter in the second degree, and the court properly refused to instruct the jury thereupon. 18 Ala. App. 578, 93 So. 351. Extrajudicial confessions are not conclusive on the declarant. Underhill on Crim. Ev. (2d Ed.) 276.
There was no error in permitting the witness Felton to testify as to the identity of the shells. This evidence was relevant and admissible, and, whether weak or strong, its probative force was for the jury.
The trial court will not be put in error for an abuse of its discretion, upon the recross-examination of the witness Felton, in declining to permit defendant's counsel to ask said witness if he was telling the truth or had told the truth as to certain parts of his testimony, especially when the witness had just previously stated that he was telling the truth, and was not lying. The other objections to the rulings upon the evidence are so palpably without merit that a discussion of same can serve no good purpose.
There was sufficient evidence of the defendant's guilt to make the same a question for the jury; hence there was no error in overruling defendant's motion to exclude same or in refusing the requested general charge. The state's evidence established the corpus delicti, threats of defendant to kill the deceased, a motive and preparation, as well as an unobjected to admission or confession by the defendant that he killed the deceased. Nor was there error in overruling that ground of the motion for a new trial testing the weight and sufficiency of the evidence to support the verdict. The trial court and jury saw and heard the evidence, and we cannot say that the verdict was so contrary to the great weight of the evidence as to put the trial court in error for declining to disturb same.
Charge A, refused the defendant, was bad. This court has repeatedly condemned charges admonishing juries that they must act in the same manner as in relation to matters of the most solemn importance to themselves. 7 Mayfield's Digest, pp. 138, 139.
There was no error in refusing the defendant's requested charge C. If not otherwise faulty, it assumes and instructs that the state was relying on circumstantial evidence alone for a conviction when there was proof in the case of an admission by defendant that he killed the deceased. Dennis v. State, 118 Ala. 72, 23 So. 1002; Hannigan v. State, 131 Ala. 29, 31 So. 89.
There was no evidence tending to show manslaughter in the second degree, and the trial court did not err in not defining same to the jury. Whitehead v. State, 206 Ala. 288, 90 So. 351.
There was no error in not permitting defendant's counsel to read certain opinions in the Alabama Reports or excerpts therefrom, to the jury, and the record shows that they were read to the court in the hearing of the jury, and that counsel commented upon same both to the court and jury. Walkley v. State, 133 Ala. 183, 31 So. 854; 38 Cyc. 1481.
The trial court will not, of course, be put in error for refusing a new trial because of newly discovered evidence when such evidence would not be admissible upon a retrial of the cause. This purported newly discovered evidence, being affidavits of two witnesses that the state's witness Felton admitted to affiants that he, and not the defendant, killed deceased, is but hearsay evidence — an extra-judicial confession — and would not be admissible to show that another committed the offense. A defendant can disprove his guilt by proving the guilt of some other person. Brown v. State, 120 Ala. 342, 25 So. 182; McDonald v. State, 165 Ala. 85, 51 So. 629. But this must be done by legal evidence, and not by the testimony of witnesses who heard another admit that he committed the offense; this is the merest hearsay — is but an extra-judicial confession or admission not admissible in evidence. Welsh v. State, 96 Ala. 92, 11 So. 450; Underhill on Criminal Evidence (2d Ed.) p. 276, § 145. While this newly discovered evidence was not admissible to show that another committed the offense, it will be admissible to impeach or contradict Felton, who testified as a witness against the defendant, after laying a predicate, and which was not done on the former trial because the proof shows that this newly discovered evidence was unknown to the defendant or his counsel at the time. This witness Felton was the most important one who testified against the defendant, and it is in fact questionable as to whether or not the state made out a case without his testimony, and we are not able to say that proof of these statements would not probably change the result. True, the state introduced affidavits that the affiants as to the newly discovered evidence had both been convicted of offenses involving moral turpitude, but this fact goes merely to the weight and credibility of the evidence, and not its admissibility. The trial court erred in refusing the defendant a new trial, and the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.