In Walker, the accused was within the curtilage of his father's dwelling while crossing the yard surrounding it to the fence, which separated it from his own premises.Summary of this case from Jones v. State
6 Div. 127.
January 13, 1921.
Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.
Ellis Matthews, of Birmingham, for appellant.
Where an answer is responsive, it cannot be objected to, unless an objection was made to the question. 160 Ala. 584, 49 So. 323; 31 Ala. 108, 68 Am. Dec. 159. The objection that the answer is not responsive must come from the party asking the question. 157 Ala. 618, 47 So. 578; 116 Ala. 606, 22 So. 905; 169 Ala. 287, 53 So. 832. Unless palpably inadmissible, the objection must be specific. 17 Ala. App. 500, 86 So. 158; 106 Ala. 58, 17 So. 546. Any declaration, accompanying and characterizing the act, or connected with the main fact or transaction, is admissible as a part of the res gestæ. 159 Ala. 53, 48 So. 689; 133 Ala. 81, 31 So. 802, 91 Am. St. Rep. 17; 97 Ala. 215, 12 So. 176; 89 Ala. 63, 8 So. 110; 6 Ala. App. 594, 60 So. 499. Time alone does not determine whether a thing is of the res gestæ. 174 Ala. 63, 57 So. 245; 2 Ala. App. 38, 56 So. 89. Evidence tending to show that the defendant was guilty of another and separate offense is not admissible as a general rule. 42 Ala. 432; 109 Ala. 11, 19 So. 535; 83 Ala. 20, 3 So. 547; 6 Ala. App. 41, 60 So. 455. Where part of a conversation is put in evidence by one party, the other party may have the whole conversation, although the original evidence was illegal. 17 Ala. App. 500, 86 So. 158; 131 Ala. 10, 31 So. 569; 91 Ala. 64, 9 So. 171. A person, a guest at the home of his father, may legally resist trespasses thereon to the same extent as if it were his own. 201 Ala. 512, 78 So. 866; 160 Ala. 7, 49 So. 905; 112 Ala. 1, 21 So. 214; 161 Ala. 259, 49 So. 895, 23 L.R.A. (N.S.) 996, 18 Ann. Cas. 636. The defendant was without knowledge or notice of the official character and presence of the officer, Granger. The offense is no more than manslaughter. 104 Ala. 171, 16 So. 68, 53 Am. St. Rep. 27; 181 Ala. 35, 61 So. 336. Counsel discuss other assignments of error, but without further citation of authority.
J. Q. Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
Evidence of a former difficulty is inadmissible as to detail. 197 Ala. 193, 72 So. 316; 191 Ala. 21, 68 So. 57; 116 Ala. 468, 23 So. 135. The rule of conspiracy has no application to this case, although the rule would have been different, had the defendant been killed and a member of the posse been on trial. 112 Ala. 77, 21 So. 65; 124 Ala. 59, 27 So. 272; 8 Ala. App. 187, 62 So. 575. A defendant, who testifies, may be subject to cross-examination and impeachment. 78 Ala. 474, 56 Am. Rep. 45; 89 Ala. 63, 8 So. 110; 99 Ala. 169, 13 So. 375; 100 Ala. 53, 14 So. 621. In any event the answer was favorable to the defendant. 150 Ala. 80, 43 So. 365.
The foregoing statement of the case sufficiently outlines the tendencies of the evidence for the state and the defendant, for a proper understanding of the important questions presented upon this appeal.
There was no error in the court refusing to permit the defendant to introduce evidence as to everything that was said and done by each member of the "crowd" upon the first trip in pursuit of the defendant. We are of the opinion that the details of what occurred between defendant and young Connell, when the defendant and his wife were passing through Tarrant City on their way home, are irrelevant, and should not become the subject of inquiry upon this trial. It is sufficient, both from the standpoint of the state and the defendant, to prove that at this time the defendant, who is a negro, had had an encounter with this young white boy, which, it is insisted, in any event, did not exceed a misdemeanor, and that thereafter a crowd of young white men procured an automobile and went in pursuit of the defendant, threatening him and making hostile demonstrations.
These are questions properly to be proven, as they shed some light upon the state of mind of the defendant, and tend to give basis for his apprehension upon their return when the tragedy occurred. It is without dispute that the defendant was not charged with the commission of any felony, and had committed no offense in the presence of any officer; that there was no warrant for his arrest, and that he was beyond the limits of Tarrant City, and without the jurisdiction of the town marshal thereof.
It is insisted on the part of the defendant, and not controverted by counsel for the state on this appeal, that deceased, who was town marshal of Tarrant City, had no more authority on the premises than a private citizen; but the state contends that charges to this effect were abstract, as there is no direct evidence to show deceased was, at the time he was killed, acting in his official capacity for the arrest of defendant; but it clearly appears from this record that the jury might reasonably infer that the services of deceased were employed by these young men on account of his official capacity, and that he was in fact so acting. He was spoken of throughout the trial by all the witnesses as "Officer" Granger, and, as disclosed by the bill of exceptions, this very forcibly impressed one of the jurors, who asked the trial judge to charge as to the authority of Granger as an officer to make the arrest at that place. In view of the peculiar facts as here presented, therefore, these charges were not abstract, and we are of the opinion their refusal was error.
It was further without dispute that defendant had taken refuge and was a guest in his father's house on this occasion. It is a universal doctrine that a person assailed is not bound to retreat from his own dwelling, and this doctrine is applied to the curtilage, Madry v. State, 201 Ala. 512, 78 So. 866. where the authorities in this state are reviewed and reconciled or explained. This principle extends to guests in a dwelling house. As said by this court in Crawford v. State, 112 Ala. 1, 21 So. 214:
"The law has been long settled that a guest in a dwelling house is entitled to the protection the law affords to the owner or more permanent occupant."
See, also, Suell v. Dericott, 161 Ala. 259, 49 So. 895, 23 L.R.A. (N.S.) 996, 18 Ann. Cas. 636.
This doctrine is for defensive purposes only, and cannot be used for any offensive purpose. As said in some of our previous decisions:
"No person is permitted by law to turn his castle from 'a shield to a sword.' * * * for * * * it is a shelter, but not a sally port." Montgomery v. State, 160 Ala. 7, 49 So. 902.
It is not contended by defendant that, If the killing occurred as insisted by witnesses for the state, the deceased being fired upon from the open door of the house under circumstances as detailed in the record, this would not be murder. But upon this point there was sharp conflict; the defendant insisting, and offering proof to sustain the theory, that he fired the fatal shot while in his father's yard in the pathway leading to his home, which was next door, and while standing near his father's front porch, and under circumstances as outlined in the statement of the case, which need not be here repeated. The question of the duty to retreat, therefore, upon his theory of the case, becomes one of vital importance.
It will hardly be controverted that under defendant's theory, the place where he fired the fatal shot was within the curtilage of his father's dwelling. Cook v. State, 83 Ala. 62, 3 So. 849, 3 Am. St. Rep. 688. He was therefore, under the law, entitled to the protection of the doctrine against retreat, the same as his father would have been, had the latter been charged with the killing. We are therefore of the opinion that the trial court erred in that part of the oral charge wherein he instructed the jury in substance that the premises of defendant's father would not be considered the home of defendant, and that the law required him to retreat, whether he was in the yard or in the house.
Defendant, being examined in his own behalf, was, upon cross-examination by the state, asked numerous questions as to difficulties with other parties and at other times, in no manner connected with the offense with which he was charged. These questions might have been proper when addressed to witnesses who had testified for the defendant as to his character for peace and quiet, but were improper when propounded to defendant himself. Caldwell v. State, 160 Ala. 96, 49 So. 679; Clark v. State, 78 Ala. 474, 56 Am. Rep. 45. Rather a full discussion is presented in this latter case, and we take therefrom the following excerpt, as applicable here:
"When there is only the relation of a witness, the defendant may not be affected, other than as the credibility of one of his witnesses may be impaired; but, when the accused is himself the witness, not only may his credibility as a witness be affected, but his conviction may be obtained on his real or supposed commission of other and distinct offenses, when the evidence otherwise is in itself insufficient. To avoid such injustice, and to secure to the defendant a fair and impartial trial in the sense guaranteed by the law, the waiver of the constitutional immunity from compulsory self-examination should not be extended beyond facts which may be testified to by other witnesses, or which may be relevant to the issue, or may tend to elucidate it. Within these limits, the fullest cross-examination should be allowed; but its range into inquiries respecting past transactions and offenses, separate and distinct, is prohibited by the constitutional inhibition."
It is contended by the state, if error was committed, it was without prejudice, for the reason the answers were in the negative. Some of the answers, while negative in substance, were greatly qualified, and many of the questions were of such character as to arouse race prejudice and passion. Some of these will be found in the statement of the case. That these rulings were highly prejudicial we think is made clearly to appear from an examination of the record, and we consider further discussion unnecessary.
There are other questions presented, but which need not be considered, as they will not likely again occur. It results that the judgment of conviction will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.