Pope v. State

SOMERVILLE, J.

This is the second appeal in this case, the first being reported in Pope v. State, 168 Ala. 33 , 53 South. 292 . On the first trial, as on the second, appellant was convicted of murder in the first degree, and sentenced to death. The record presents for review numerous rulings of the trial court, the most important of which are discussed at length in the brief of counsel for appellant. We consider these in the order in which they are presented.

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1. The trial court properly refused to give for the defendant the general affirmative charge. We cannot undertake to review the evidence at length in this opinion; but we have examined it with painstaking care, and are satisfied that, taken as a whole, it fairly and reasonably permits of inferences favorable to the guilt of the defendant. — Toles v. State, 170 Ala. 99 , 54 South. 511 ; Turner v. State, 97 Ala. 57 , 12 South. 54 .

The insistence of appellant’s counsel in this behalf, forceful and earnest as it is, was for the considération of the jury, and we cannot usurp their functions by here passing upon the mere weight of the evidence they had before them.

2. The juror Stovall, having been examined by the court, was pronounced competent. On cross-examination by defendant’s counsel, he admitted that from what he had heard of the case he had “drawee! an opinion”; but he repeatedly- stated that he thought it would have no effect on his verdict, that he knew he would be governed by the evidence. I-Te said further: “I expect it would be somewhat different if I had never heard of it. Tt would be according to the evidence given in. I can’t say how it would be.” And, finally, as to whether he was absolutely certain that what he had heard might not unconsciously have some inihience on him, he said, “I couldn’t be for sure.”

Under the principles fully discussed and laid down in Long v. State, 86 Ala. 86, 40 , 5 South. 443 , this juror was umhmbtedly competent. It seems certain from his whole examination that he had no fixed opinion of defendant’s guilt which would bias his verdict. It is not necessary to a juror’s competency that he shall be able to say that he feels absolutely certain that previous impressions will not unconsciously influence his verdict. This is a purely psychological speculation *73 which must he deemed foreign, to the purposes of the la w, which guarantees only approximate and not absolute impartiality in jurors. As said by Chief .Justice Marhsall on the trial of Aaron Burr: “Light impressions, which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but those strong and deep impressions, which will close the mind against file testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him” — cited and approved in Long v. State, 86 Ala. 42 , 5 South. 447 .

In Long v. State, the rule on appeal is thus stated: “Qhie reviewing court, therefore, should exercise caution, and the finding of the trial court should not be set aside, unless it affirmatively appears that, on the answers of the juror taken as a whole, he entertained a fixed opinion which would bias his verdict.”

The ruling in the case of King v. State, 89 Ala. 146 , 7 South. 750 , cited and relied on by appellant, is by no means in point, as will be seen by an examination of the challenged juror’s answers in the report of that case. While, on the other hand, our ruling here is in accord with the ruling in Hammil v. State, 90 Ala. 577 , 8 South. 380 , on substantially the same conditions.

3. In opening, the state’s case was presented to the jury by the solicitor by merely reading the indictment. Supplementing his formal plea of not guilty, defendant’s counsel made a statement to the jury depreciatory of the state’s case, and indicating that another than the defendant would be shown to be guilty. The record does not set out all that counsel said, but recites that he “addressed the jury at some length along the lines indicated.” Over the objection of defendant that the *74 state had no right to go into a rebuttal statement, the court allowed associate counsel for the state to reply to the statement of defendant’s counsel by outlining what the state expected to prove relative to defendant’s guilt.

■.Under the practice prevailing in this state, neither party is required to make any preliminary statement of his case other than by his formal pleadings. But counsel on other side may state to the jury the case as he proposes and expects to present it to them on the evidence. — Mann v. State, 134 Ala. 1, 18 , 32 South. 704 ; 12 Cyc. 570, 571. The course followed by the trial court in the present case seems to be identical with that approved in Mann v. State, supra. The question raised is one of trial practice merely, and falls within that class of matters the regulation and control of which have always been left to the sound discretion of the trial court; and error cannot be imputed to its action with respect thereto except perhaps in cases of flagrant and prejudicial abuse. Defendant’s objection to the reply statement was properly overruled.

4. The testimony of the witness Williams, for the state, that a pair of shoes, alleged to be the defendant’s were, when he examined them at the coronor’s inquest, a little damp, like they had been washed — specked with what he decided were blood stains — and had the appearance of being scraped, was clearly not subject to the objections interposed; the objection insisted on being that it was but the conclusion of the witness, and the shoes were the best evidence. — James v. State, 104 Ala. 20 , 16 South. 94 . The witness saw the shoes a day or two after the murder, in April, 1909, and his testimony was delivered in October, 1910. It is manifest that the jury could not on this trial judge of physical conditions, necessarily ephemeral in their character, as they existed 18. months before; and that, otherwise than as he *75 did, the witness could not fairly and adequately inform the jury as to those appearances and conditions. Had the witness been testifying to the instant appearance of the shoes, the objections and arguments in support thereof would be sound and appropriate. These considerations dispose of numerous other assignments' of error based on practically identical rulings of the trial court, which we shall therefore not notice in detail.

5. The witness Joe Dodgen, in describing his tracking of a wagon and mule from the scene of the murder towards defendant’s house stated that they left the road, and that the vines growing over the fence alongside were mashed down “like something went over the fence.” Defendant moved to exclude this statement on the ground that it ivas a conclusion of the witness. We think the motion was properly overruled. — Watkins v. State, 89 Ala. 82 , 8 South. 184 .

6. This witness was allowed against defendant’s objection to state that, when he was following these tracks,' he had not then heard who was accused of the killing. This evidence was on the former appeal of this case held to be admissible, but we are now urged to reconsider and reverse that ruling. We have again considered the merit of this evidence, and are still of the opinion that, in view of the peculiar nature of the witness’ other testimony, it was a legitimate matter for the consideration of the jury in connection therewith.

7. The theory of the state was that defendant, at the time of the murder, was driving a wagon to which was hitched a mule belonging to defendant, but which was in the possession of Ambrose Curry, who lived on defendant’s place. The witness Joe Dodgen had testified that the tracks traced by him from the scene of the crime to defendant’s house showed that the animal’s *76 left hind foot was cupped, which he inferred from the shape of the track; and that there were two protuberant nails in the right hind foot, as shown by. their imprint on the ground. The witness then stated that he had found a mule whose foot could have made these tracks. This was objected to as not being responsive to the solicitor’s question. This objection was not well taken;. The interrogator may on motion exclude matter not responsive to his inquiry, even though competent, for the obvious reason that his witness cannot dictate to him what evidence shall be introduced; but, if the evidence is competent, the other party has no right whatever to object to it because not responsive, and if incompetent, the objection should so specify.

8. This witness stated that the Ambrose Curry mule would have made a track with the hollow place on the inside, with the left hind foot. The solicitor then asked him,. “Would it have made a track that is similar or like-.the track of the left hind foot of the mule and wagon that you tracked from the alley to Pope’s house?” The witness replied that it would. We think this testimony was admissible, and not subject to the objection that it was the conclusion merely of the witness.

This court has frequently held that a witness should not be allowed to state that a certain shoe or foot could or would make a. particular track; that being, it is said, the very fact the jury are to determine. — Busby v. State, 77 Ala. 66 ; Riley v. State, 88 Ala. 193 , 7 South. 149 ; Hodge v. State, 97 Ala. 37 , 12 South. 164 , 38 Am. St. Rep. 145 .

It has also been held that a witness should not be allowed to state that two particular tracks are the same. — Terry v. State, 118 Ala. 79, 84 , 23 South. 776 . But, on the other hand, it has been held that a witness who had examined the alleged track of the defendant *77 could state that it “corresponded” with a track made by him next day, with which the witness compared it, “by measurement, and certain marked peculiarities. - Bushy v. State, 77 Ala. 66 . And also that two tracks “measured the same.” — Gilmore v. State, 99 Ala. 154, 159 , 13 South. 536 . While, in another case, it was ruled that the witness could not state that particular tracks “correspond with the track of defendant.” — Livingston v. State, 105 Ala. 127 , 16 South. 801 .

In James v. State, 104 Ala. 20, 22 , 16 South. 94 , the witness had described the physical peculiarities of the defendant’s tracks. He Avas then asked, “What Avas the similarity between the tracks at the forks of the road and the seed room door?” Objection that this called for the witness’ opinion was OAerruled, and the witness stated that the peculiarities of the tracks at the two places-were “the same.” The question and answer were held to be competent.

In an attempt to harmonize the James Case Avith the ruling in Terry v. State, 118 Ala. 85 , 23 South. 776 , the writer of the opinion in the latter case palpably misinterpreted the facts upon AAiiich the ruling in the James Case Avas founded.

A consideration of the foregoing cases, to say nothing of those in other jurisdictions, Avould seem to justify the obseiwations of Mr. Wigmore: “The opinion rule day by day exhibits its unpractical subtlety and its useless refinements of logic. Under this rule Ave accomplish little by enforcing it, and we should do no harm if we dispensed aatHi it. * * * We should do no harm, because, cweii AA’lien the final opinion or inference is admitted, the inference amounts in force usually to nothing unless it appears to be solidly based on satisfactory data, the existence and quality of AAdiich A\e can always bring out, if desirable, on cross-examination.” *78 And. he. concludes: “Add, finally, the utter impossibib ity of a consistent application of the rule, and the consequent uncertainty of the law, and we understand how much more it makes for injustice rather than justice. It has done more than any one rule of procedure to reduce our litigation towards a legalized system of gambling.” — 3 Wigmore on Evidence, § 1929.

We do not mean, however, to overturn the general principles of the opinion rule as established by the decisions of this court. But we think the spirit of the rule is not violated by the shorthand statement of similarity here made by this witness, in connection with the marked peculiarities stated by him, subject as it was to cross-examination by defendant. — Fuller v. State, 117 Ala. 36 , 23 South. 688 . And we are unwilling to embarrass trial courts by any further extension of the rule of exclusion, at least as a basis for the reversal of judgments on appeal.

Dowdell, C. J., and Simpson and McClellan, JJ., concur in this conclusion; while Anderson, Mayfield, and Sayre, JJ., dissent,- holding that the admission of this evidence was error for which the judgment of conviction should be reversed.

9. Several questions were asked this same witness, who was a practical blacksmith Avith 15 years’ experience in shoeing horses, relative to the condition of the Curry mule’s right hind foot, and the liability of a loose nail to drop out. He being an expert in this line, the answers of the witness Avere clearly competent, and their admission was not error.

10. It Avas the theory of defendant’s counsel that the murder Avas committed by John Body, a negro who lived Avith his mother, Nett Body, in the house by the road just at the point where the crime occurred. Presumably to weaken this argument, the solicitor asked the same *79 witness, “Could the John Body mule make the track that you saw from that peach tree to i Ervin Pope’s house?” Over defendant’s objection that this called for a conclusion of the witness, he was allowed to answer, “No.”

Under the authorities above cited, this objection was well taken, and the admission of the witness’ answer was manifest error.

Section 6264, Code 1907, declares that “the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant.” This language has been construed to mean that the court must be satisfied that the verdict of the jury would not have been different if the error had not been committed. — Dennis v. State, 118 Ala. 79 , 23 South. 1004 .

It is therefore mandatory upon us to consider the entire record and reverse or affirm on this ruling according as we may be satisfied as to its injurious or non-injurioiis effect upon the jury’s verdict. And, in doing this, we are to be governed by practical considerations of reason and common sense, rather than by the unsubstantial apprehensions that formerly found • expression in the rule of reversal in every case for any error apparent in the record; while, at the same time, the just rights of defendants must be carefully guarded, and substantial doubts resolved in their favor.

We have sifted the evidence with care, and find no facts from which the jury could have drawn an inference that John Body committed the murder, or shared in its commission. While it is true that the proximity of the accused to the scene of the crime at an unreasonable hour has been held to be an incriminating circumstance (Ross v. State, 74 Ala. 532 ; Lindsey v. State, 170 Ala. 80 , 54 South. 516 ), the mere fact that the crime oc *80 curred ou the highway near the home of the accused cannot by itself yield any inference of his guilt.

Nor does the theory And any support in the fact that the subpuma issued for Body was returned with the indorsement, “Not found,” 18 months after the date of the crime. This does not show flight by Body; and, if it could be so interpreted, even his flight is not a circumstance available to this defendant. — Levison v. State, 54 Ala. 520 ; Kemp v. State, 89 Ala. 52 , 7 South. 418 .

We are therefore fully satisfied that the attempted exculpation of Body’s mule, whether by legal or illegal evidence being merely irrelevant, could not have influenced the verdict of the jury unfavorably to the defendant, since they could not, on the evidence, have imputed guilt to Body; and the error complained of cannot avail for a reversal of the judgment of conviction.

11. Nett Body, the mother of John Body, testified that she and John were in his house, where she also lived, on the night of the murder, and that, hearing a noise, she called out to him. Over defendant’s objection, she was then allowed to state that he replied, “Don’t you hear somebody fighting out there in the road?” This statement by John Body was clearly not admissible as a part of the res gestrn of the murder going on outside, and was obnoxious to the hearsay rule.

Time alone is not a determining criterion when the question is whether a thing said or done is a part of a given transaction. — Domingus v. State, 94 Ala. 9 , 11 South. 190 . It must be so connected with the main transaction as to virtually form a part of it. — A. G. S. R. Co. v. Hawk, 72 Ala. 112 , 47 Am. Rep. 403 .

The unanimous opinion of courts, as well as commentators, is that the remarks or exclamations of mere bystanders or lookers on, who in no way participate in *81 .the transaction, are not admissible in evidence under the res gestee doctrine. — Flynn v. State, 43 Ark. 289 ; Wilkins v. Ferrell, 10 Tex. Civ. App. 231 , 30 S. W. 450 ; State v. Riley, 42 La. Ann. 995 , 8 South. 470 ; State v. Oliver, 39 La. Ann. 470 , 2 South. 194 ; Butler v. M. Ry., 143 N. Y. 417 , 38 N. E. 454 , 26 L. R. A. 46, 42 Am. St. Rep. 738 ; Ganaway v. S. L. D. Ass’n, 17 Utah, 37 , 53 Pac. 830 ; Carr v. State, 76 Ga. 592 ; Leahey v. Cass Ry. Co., 97 Mo. 165 , 10 S. W. 58 , 10 Am. St. Rep. 300 ; Chicago Ry. Co. v. Cummins, 24 Ind. App. 192 , 53 N. E. 1026 ; Wharton on Crim. Law, §§ 262, 263; 1 Bish. Crim. Ev. § 1087.

But, although erroneous, the admission of Body’s statement was absolutely without prejudice to the defendant. It merely referred to an undisputed fact, and in .no possible way suggested defendant’s connection therewith. If it be urged that its purpose was to show that Body was in the house while the crime ivas being committed outside, the answer is that the witness had already testified, without objection, that he ivas in the house with her at the time. Moreover, in any aspect, even if it tended independently to exculpate Body, for the reasons set forth in the paragraph above, it added nothing to the proof of defendant’s guilt, and in no way weakened the inference of his innocence. We therefore hold that he cannot complain of its admission.

12. There was no error in-allowing witnesses to testify to their finding of sorghum seed and peas in defendant’s back yard several weeks after the burglary and murder. Such articles had been taken from Mc-Clurkin’s ginhouse on the night of the murder, and the fact that some weeks had elapsed was but a circumstance for the jury to consider in estimating the probative value of the discovery. The fact was none the less relevant.

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13. The witness Norton was allowed, against defendant’s objection, to state that a certain substance pointed to on a rock picked up near the murdered man’s body, was hair; the rock itself being in evidence. It may be conceded that whether or not the rock had hair upon it should have properly been left to the jury. But it is difficult to understand what this had to do with the guilt or innocence of defendant, or in what way it could have prejudiced him.

Neither the fact nor the manner of the killing was in dispute, and this rock did not come from defendant’s possession, nor from his premises. If the statement was improperly admitted, its admission was harmless, and defendant cannot complain of it.

14. We have examined and considered all the other rulings of the trial court on the admission of evidence, and find no errors with respect thereto.

15. Charges 1 and 2 are bad, because they do not predicate a reasonable theory of some other person’s guilt.

Charges 3, 5, 6, 8, 13, and 14, because they single out evidence, and are also argumentative.

Charges 4, 10, and 'll, because they are argumentative and misleading.

Charges 7 and 15, because the law does not distinguish between white people and negroes, so far as their guilt or innocence of crime is concerned, and because they are argumentative.

Charge 12, because the reasonable doubt which requires a verdict of not guilty should grow out of the whole evidence, and not from consideration of a single link or part.

Charge 9 is bad because, for the reasons set out in paragraph 10, above, there was no evidence to support it, and it was wholly abstract. It is bad, also, even if *83 there was evidence of Body’s guilt, because the evidence against defendant may nevertheless have been sufficiently strong to convince the jury of his participation in the crime, and to produce the inference of collusion.

It results that the judgment of the trial court must be affirmed.

Affirmed.

Dowdell, O. J., and Simpson, and McClellan, JJ., concur. Anderson, Mayfield, and Sayre, JJ., dissent on the single point indicated in the opinion, as to which they hold .there was error for which the judgment should be reversed.