In Hill v. State, 210 Ala. 221, 97 So. 639 (1923) [Headnote 8], this court held, in a prosecution for murder, it was proper for defense counsel to ask whether a state's witness, and son of defendant, had sworn out a warrant against the defendant on another matter as tending to show feelings of ill will toward the defendant on the part of the witness.Summary of this case from Wells v. State
6 Div. 770.
June 30, 1923. Rehearing Denied October 18, 1923.
Appeal from Circuit Court, Tuscaloosa County; S. F. Hobbs, Judge.
Brown Griffith, of Cullman, Ray Cooner, of Jasper, and Edw. De Graffenried, Jr., and F. F. Windham, both of Tuscaloosa, for appellant.
General character cannot be shown by proof of particular acts. Maxwell v. State 11 Ala. App. 53, 65 So. 732; Moulton v. State, 88 Ala. 116, 6 So. 758, 6 L.R.A. 301; Morgan v. State, 88 Ala. 223, 6 So. 761; Evans v. State, 109 Ala. 11, 19 So. 535. Charge 1 should have been given, and its refusal constitutes reversible error. Chaney v. State, 178 Ala. 44, 59 So. 604: Bailey v. State, 168 Ala. 4, 53 So. 296, 390; Neilson v. State, 146 Ala. 683, 40 So. 221; Bryant v. State, 116 Ala. 445, 23 So. 40. The interest of a witness in the success of the party for whom he testifies may be proven to show bias. A. G. S. v. Burgess, 114 Ala. 597, 22 So. 169; 40 Cyc. 2651; Grayson v. State, 162 Ala. 84, 50 So. 349; Cook v. State, 152 Ala. 66, 44 So. 549; Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am. St. Rep. 28. The motion to exclude the evidence of Clyde Hill, co-conspirator, should have been granted; there being no evidence aliunde to connect defendant with the homicide. Smith v. State, 46 Tex. Cr. R. 267, 81 S.W. 936, 108 Am. St. Rep. 991; Phœnix Ins. Co. v. Moog, 78 Ala. 284, 56 Am. Rep. 31; McAnally v. State, 74 Ala. 9; Morris v. State, 146 Ala. 66, 41 So. 274; Jackson v. State, 178 Ala. 76, 60 So. 97; Smith v. State, 8 Ala. App. 187, 62 So. 575; Martin v. State, 28 Ala. 71. What a person says upon setting out upon a journey is admissible, as of the res gestæ. Mayo v. State, 15 Ala. App. 305, 73 So. 141; Kilgore v. Stanley, 90 Ala. 523, 8 So. 130; Davis v. State, 188 Ala. 59, 66 So. 67; Jones v. State, 174 Ala. 53, 57 So. 31; Terry v. State, 203 Ala. 99, 82 So. 113 Pitts v. Burroughs, 6 Ala. 735.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
A part of a conversation being elicited by defendant, the state had the right to bring out the whole. Norris v. State, 16 Ala. App. 126, 75 So. 718; 12 Mich. Ala. Dig. 1238. The statute does not impose upon the court the duty of interrogating jurors for the purpose of challenge. Murphy v. State, 37 Ala. 142; Jackson v. State, 94 Ala. 85, 10 So. 509; Terry v. State, 13 Ala. App. 115, 69 So. 370. No objection being taken to a question, a motion to exclude the answer comes too late. Connelly v. State, 18 Ala. App. 424, 93 So. 45; Pittman v. State, 18 Ala. App. 447, 93 So. 42; Patterson v. State, 18 Ala. App. 507, 93 So. 691. Evidence of where Ed Hill told a witness he was going was properly refused. Granberry v. State, 184 Ala. 5, 63 So. 975.
The record proper recites that —
"The defendant in open court, before the oath is administered to the jury to try this case, and before challenging any member of the venire, but after the court had questioned them touching their qualifications and competency as jurors, makes objection to the said jurors being put upon him for the trial of this case, because the qualifications and competency of the said jurors to try this case have not been ascertained as required by law."
A previous recital of the record shows that the court had examined and passed upon the general qualifications of all of the special veniremen. A recital in the bill of exceptions shows that "after the regular and special venire of jurors had been qualified by the court and examined touching their fitness to sit upon the cause now about to be tried," and after the above objection was filed, the court "does here and now offer to further qualify each and every member of the regular and special venire touching their qualifications and competency to sit on this case, and to ask any other legal qualifying question which may be suggested by the defense," and that "the defendant then and there, in open court, declined to make any suggestion." Defendant's objection to the jury was then overruled, and the ruling was clearly proper.
It is of course the duty of the trial judge to ascertain the qualifications of the jurors in every case. O'Rear v. State, 188 Ala. 71, 66 So. 81; Folkes v. State, 17 Ala. App. 119, 82 So. 567. It appears that in this case he ascertained, by inquiry of them, that they were not witnesses in the case; that they had no fixed opinion as to the defendant's guilt or innocence; that no one had sought to influence them; that they were not opposed to capital punishment; that they would convict on circumstantial evidence; and that none of them had been indicted for or convicted of a felony. If defendant was not satisfied with such an examination and qualification, he should have pointed out the omissions he objected to, and requested the proper inquiries. James v. State, 53 Ala. 380, 387; Braham v. State, 143 Ala. 28, 33, 38 So. 919. Having failed to avail himself of the offer made by the trial judge and making no suggestion that any juror was in fact disqualified for any reason, his objection was properly overruled. Braham v. State, supra.
The fact that Ed Hill, a son of this defendant, and one of the four alleged conspirators in the killing, had been tried for this same murder on the same theory of conspiracy here presented, and acquitted, was patently irrelevant and inadmissible on the issue of this defendant's guilt, and the demurrer to defendant's plea setting up that acquittal in bar of his own conviction here was properly sustained. Such an acquittal is no more competent to show the defendant's innocence than that other's conviction would have been to show the defendant's guilt.
The most important witness for the state was Clyde Hill, the youngest son of the defendant, who testified that the murder charged was planned by the defendant and his two other sons, Ed and Hard, and the witness, and was executed by the three of them near defendant's home, whither they had lured their unsuspecting victim, the motive of the murder being their belief that he had betrayed them and caused their illicit stills to be raided and destroyed. This witness testified that the defendant, though not actually present, was an accessory to the murder, and that he aided in the preparation of the grave in which their intended victim was to be buried, and in the removal and concealment of the body in another grave afterwards.
The chief points of controversy throughout the trial were the existence of the alleged conspiracy, and the sufficiency of the evidence, outside of the testimony of the coconspirator and accomplice, Clyde Hill, to connect the defendant with the commission of the crime. We have examined the testimony with due care, and are convinced that the testimony of Clyde Hill was corroborated by other competent testimony which tended to so connect the defendant, especially the testimony of Rilla Williams, his stepdaughter, who was living in his house. It will therefore suffice to say, with respect to all those objections to testimony, and all instructions requested and refused, based upon the assumption that there was no such corroborating testimony, that they were properly overruled and refused.
In the cross-examination of witnesses who testified to the good character of the defendant, the solicitor was allowed to ask them whether they had heard of various acts of the defendant which were of a nature to affect his reputation. Such matters, whether as facts or as reputed facts, are not admissible as original evidence, but, as reputed facts, are properly inquired about on cross-examination to test the value of the witness' opinion. Moulton v. State, 88 Ala. 116, 6 So. 758, 6 L.R.A. 301. Appellant's argument overlooks this important distinction. Had the questions complained of sought to elicit testimony that the defendant had actually done those things, they would have been improper, and their allowance erroneous.
One ruling especially complained of is thus correctly stated in defendant's brief:
"After defendant had put his character in issue, one W. H. Ballinger, introduced as a witness by the state, testified in part on direct examination that he knew the defendant, Monroe Hill; that he knew his general character and reputation; that he considered it bad; that his character for truth and veracity was bad and he could not believe him on his oath. On cross-examination the witness testified in part that witness had heard one Blackman discuss Monroe Hill in reference to his wife — the death of his wife. On redirect examination the state asked the witness the following question: 'What was it he said about the death of his wife?' The defendant objected to this question, and the court overruled the objection, to which action of the court the defendant then and there duly excepted. The witness answered: 'He said sometimes he could not hardly keep from taking his gun and going up and killing the old man Hill because he believed that big spree he had upon Sunday, abusing and whipping his wife, caused her death.' "
The record shows that the answers on cross-examination were in response to defendant's questions: "What did you hear Mr. Blackman say?" and "Name one of the ways that you heard?" The argument is that the cross-answers were not unfavorable to the state, and needed no explanation. But the rule is well settled that —
"When part of a conversation, or part of a transaction, is put in evidence, the opposing party may rightfully call for the whole conversation or transaction." Gibson v. State, 91 Ala. 64, 69, 9 So. 171, 174.
Illustrations in point will be found in Allen v. State, 134 Ala. 159, 32 So. 318, and Norris v. State, 16 Ala. App. 126, 75 So. 718. The distinction suggested by counsel is not tenable, and finds no support in the authorities. We think the ruling complained of was correct.
It was not competent for defendant's witness Wingo, who testified that he met Ed Hill, one of the alleged conspirators, on the morning of the murder between daylight and sunup, to further testify that Ed Hill then said he was going to Creeltown and to the mill. Even if that had been true, it does not appear to have been inconsistent with his presence at the scene of the murder as testified to by Clyde Hill. It clearly does not come within the rule that the concurrent declarations of one setting out on a journey, explanatory of the object he has in view, may be shown as part of the res gestæ. Kilgore v. Stanley, 90 Ala. 523, 8 So. 130; Harris v. State, 96 Ala. 24, 11 So. 255; Maddox v. State, 159 Ala. 53, 48 So. 689.
The facts that Ed Hill, who was a witness in this case, had been indicted and tried for this same murder, and that he was not now under a charge of this murder, were not relevant to any issue before the court, and were properly excluded.
How much monthly salary the deceased, who was a deputy sheriff, had been paid by the Empire Coal Company for services rendered to it, was patently irrelevant and properly excluded.
Complaint is made that defendant was not allowed to prove that the Empire Coal Company was interested in the prosecution of the case, in connection with the fact that a number of the state's witnesses were employed by that company. The record does not support this complaint.
It was of course competent for defendant to show that his son Clyde entertained feelings of ill will against him, and to ask him if defendant did not swear out a warrant against him once for stealing his horse. The error in excluding that inquiry on cross-examination was cured by the witness' concession of that fact on rebuttal.
The fact that Clyde Hill, a confessed accomplice, and under indictment for the murder, when brought to Tuscaloosa by officers as a witness for the state was kept at a hotel instead of in jail, was not relevant to any issue in the case, and was properly excluded. So, also, was the fact that he refused to talk to the lawyers his father employed to defend him, and his statement that he did not want any lawyer.
There were other exceptions to rulings on the evidence. We have examined all of them, and they are too patently without merit to justify their statement and discussion.
Exception was taken to some portions of the judge's oral charge as being incorrect statements of the law of murder and conspiracy, and of the guilt and conviction of accessories, and of the testimony of accomplices. Standing alone, some of these excerpts were incomplete and misleading, but, taking the charge as a whole, it contained nothing improper or prejudicial, and of it defendant cannot justly complain.
We now discuss the written charges requested by the defendant and refused by the trial judge. These charges are in large part unnumbered, and those that are numbered are poorly arranged in the record, so that reference to them is impossible except by our own numbering.
Charge 1 is, as applied to the evidence, invasive of the province of the jury. It is certainly true that the independent acts of one alleged conspirator, not done in the presence of the accused, and without apparent community of action, are not evidence of a conspiracy between them. But where, as the evidence here showed, the acts of Clyde Hill, promotive of the common design, were in part at least done in the presence of the defendant acting to the same end, by his command or with his knowledge, such community of action is evidence of a common design; and the instruction that "a conspiracy cannot be proved by the acts of the coconspirator, Clyde Hill," was invasive of the province of the jury, and would have been highly misleading. As said in Tanner v. State, 92 Ala. 1, 9 So. 613 :
"Community of purpose, or conspiracy, need not be proved by positive testimony. It rarely is [so] proved. The jury are to determine whether it exists, and the extent of it, from the conduct of the parties, and all the testimony in the cause." (Italics supplied.)
In Martin v. State, 89 Ala. 115, 119, 8 So. 23, 24 (18 Am. St. Rep. 91), it was said that community of unlawful purpose "may be inferred from the conduct of the participants." In Elmore v. State, 110 Ala. 63, 20 So. 323, this instruction given for the state was approved:
"It is not necessary that community of purpose should be proved by positive testimony, but it is for the jury to determine from the conduct of the parties and all the evidence in the case whether it existed."
An illustration in point will be found in Collins v. State, 138 Ala. 57, 62, 34 So. 993.
Charge 3 is objectionable in assuming that the state's witnesses had an interest in the prosecution.
Charge 6 is invasive of the province of the jury. Evidence of defendant's share in the disposition of the victim's body might be regarded as corroborative of his share in the conspiracy, especially in connection with other evidence. However, it was covered by given charge 15.
Charge 8 was covered by given charge 18.
Charge 10 is manifestly bad by reason of the alternative "or falsity," if not otherwise bad.
Charge 11, as to its main proposition, was covered by several other charges. As framed, it is bad in requiring a finding that the defendant and all three of his sons conspired together. If defendant and one of his sons, who afterwards assisted in the murder, so conspired, this was enough.
Charge 12 is a copy of a charge that was approved as correct in Gregg v. State, 106 Ala. 44, 17 So. 321. But in the later case of Brown v. State, 142 Ala. 287, 38 So. 268, the charge was held bad, and Gregg v. State was overruled on that point.
Charge 13 is misleading, but was covered by given charge 14.
Charges 14 and 26 were substantially covered by the oral charge, and by given charges 3, 20, and 46. Those charges clearly stated the proposition of law invoked by this charge, and defendant was not entitled to anything more.
Charge 15 does not state the law of proof correctly. It is specifically condemned by the decision in Lumpkin v. State, 68 Ala. 56.
Charge 16 is argumentative, and unduly singles out special evidence. It also ignores participation by defendant in the conspiracy which the evidence tended to show.
Charges 17, 19, 21, and 24 are invasive of the province of the jury, in that the presence of Ed Hill at defendant's home on the night before the murder was not the only basis for defendant's conviction. Notwithstanding his absence at that time, the testimony as a whole might still support a conviction.
Charge 18 is bad since it was not necessary for the jury to find that all three of defendant's sons were in the conspiracy. Apart from that improper requirement, it was covered by other given charges.
Charge 20 was covered by the oral charge, and by given charge 30.
Charges 22 and 30 are argumentative merely, and do not state a principle of law.
Charge 23 was covered by given charge 48.
Charge 27 is argumentative merely, and does not state a principle of law.
Charge 29 is argumentative, and lays undue emphasis upon the official animus of witnesses who are deputy sheriffs.
The criticism made of the written charges given for the state are not well founded. They correctly define the relation and responsibility of an accomplice.
We have examined every contention made in behalf of the defendant, and we are satisfied that he was tried by a duly qualified and impartial jury, under instructions so full and favorable that the jury could not have misunderstood the law of the case or its proper application to the evidence before them. We find no prejudicial error in the rulings of the trial court, and the judgment will be affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.