Summary
In Bozeman v. State, 25 Ala. App. 281, 145 So. 165 (1932), the prosecutor asked the defendant if this was the second person he had killed.
Summary of this case from Ex Parte WilhiteOpinion
4 Div. 881.
December 20, 1932.
Appeal from Circuit Court, Covington County; F. W. Hare, Judge.
Herbert (alias Hub, alias H. L.) Bozeman was convicted of manslaughter in the first degree, and he appeals.
Reversed and remanded.
A. R. Powell, of Andalusia, for appellant.
Testimony as to a difficulty between the defendant and others after the killing, a few moments after defendant had given up his pistol, was not admissible as of the res gestae. Williams v. State, 130 Ala. 107, 30 So. 484; Pope v. State, 174 Ala. 63, 57 So. 245; Madry v. State, 201 Ala. 512, 78 So. 866. The statement by the solicitor, in form of a question, to the defendant on cross-examination, to the effect that this was the second man he had killed, was highly prejudicial, and necessitated the withdrawal of the case from the jury. Brasher v. State, 22 Ala. App. 79, 112 So. 535; Russell v. State, 223 Ala. 523, 137 So. 461; Birmingham Hospital v. Blackwell, 221 Ala. 225, 128 So. 389; Watson v. Franklin, 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565; Maryland Cas. Co. v. McCallum, 200 Ala. 154, 75 So. 902; Pryor v. Limestone Co., 225 Ala. 540, 144 So. 18; Birmingham Elec. Co. v. Ryder, 225 Ala. 369, 144 So. 18.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
Where in an indictment the name of the accused is given followed by alias and another name, "alias" stands for "alias dictus," and indicates, not that the person referred to bears both names, but that he is called by one or the other. Ferguson v. State, 134 Ala. 63, 32 So. 760, 92 Am. St. Rep. 17. The plea admits that appellant's true name is Herbert L. Bozeman. The name Herbert Bozeman, as used in the indictment is sufficient; the omission of the accused's middle initial being immaterial. Robinson v. State, 8 Ala. App. 435, 62 So. 372. Evidence as to what took place immediately after the difficulty was admissible both as part of the res gestae and as subsequent incriminating or exculpatory circumstances. Eaton v. State, 8 Ala. App. 136, 63 So. 41; Williams v. State, 18 Ala. App. 573, 93 So. 284; Kuykendall v. State, 17 Ala. App. 582, 87 So. 878; Id., 205 Ala. 213, 87 So. 882; Hammond v. State, 147 Ala. 79, 41 So. 761; Pate v. State, 150 Ala. 10, 43 So. 343; Jones v. State, 181 Ala. 63, 61 So. 434. The question propounded by the solicitor to the accused was not sufficient ground for a mistrial or the granting of a new trial, in view of the fact that the objection to the question was sustained and the jury instructed not to consider same. Pruitt v. State, 22 Ala. App. 353, 115 So. 698; Barber v. State, 23 Ala. App. 584, 129 So. 494; Lumpkin v. State, 19 Ala. App. 272, 97 So. 171; Mosely v. State, 19 Ala. App. 335, 97 So. 247; Winslett v. State, 21 Ala. App. 487, 109 So. 523.
Appellant was convicted of the offense of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for the term of five years.
It was shown that he shot and killed one Emory Cowart in the course of a fight, involving Charles Cowart, a brother of the deceased, and one Croft Able, besides deceased and appellant. As the case must be retried, we have deemed it unwise to discuss in any way the testimony, other than is necessary to make clear the few holdings we shall declare.
There was no error in sustaining the state's demurrer to appellant's plea in abatement. He being indicted under the name "Herbert Bozeman," it was immaterial that his true name was "Herbert L. Bozeman." Taylor v. State, 100 Ala. 68, 14 So. 875.
As quoted by this court, from an opinion by the Supreme Court, in the case of Hardeman v. State, 14 Ala. App. 35, 70 So. 979, 980, it is impossible " 'to lay down a general rule as to the acts or declarations which will be received as forming part of the res gestae. Each case is dependent in a great degree on its peculiar facts and circumstances. Such acts or declarations as are thus received must have been done or made at the time of the occurrence of the main fact, must have a tendency to elucidate it, and must so harmonize with it as obviously to constitute one transaction. It is not essential that they should be precisely concurrent in point of time with the main fact; if they spring out of the transaction; if they elucidate it; * * * they are regarded as contemporaneous with the main facts.' Wesley v. State, 52 Ala. 182, 187. '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 So. 190."
In the light of the above quotation from our opinion in the case of Hardeman v. State, there cited, we are constrained to hold, and do hold, that there was no error in the rulings excepted to, allowing testimony as to what passed between appellant and Charles Cowart immediately, or almost immediately, after the shooting of deceased by appellant. And see Smith v. State, 88 Ala. 73, 7 So. 52, and Pope v. State, 174 Ala. 63, 80, 57 So. 245.
While appellant, who was testifying as a witness for himself, was being cross-examined, the solicitor made to him, and the court and jury this statement: "This is the second man you have killed?" True, in the record sent up here, a question mark follows the statement ("question") as we have indicated; and perhaps we may assume, though we are not so sure of that, that the "statement" quoted was put to the witness (appellant) with a "rising inflection" at its close, thereby indicating that it was a question, not a statement. But this involves unauthorized speculation on our part, and, besides, would not, we believe, change the applicable principle of law.
Upon appellant's timely objection to the quoted statement ("question"), the learned trial judge promptly sustained said objection, admonishing the jury not to consider same, etc. Said learned trial judge realized the poisonous nature of the said illegal question, and took decisive measures, only short of rebuking the solicitor for asking same, to eradicate the poison. But he overruled and denied appellant's motion to "withdraw the case from the jury (thereby declaring a mistrial) and continue it." And in this action he in our opinion, and we hold, erred. Watts v. Espy, 211 Ala. 502, 101 So. 106. The fact that the question was objected to, and the objection sustained, told the jury very eloquently what the answer would have been!
As said by Mr. Chief Justice Anderson, for our Supreme Court, in the opinion in the recent case of Pryor et al. v. Limestone County, 144 So. 18, of remarks not more poisonous than the statement ("question") involved here: "This argument [statement, or 'question,' in the instant case we interpolate] was highly improper, and, notwithstanding the trial court sustained appellants' objection to same, and instructed the jury not to consider said argument ['question'], it is of that character which is so poisonous and improper as to be almost immune [quite so, here, we think] from eradication." And the learned Chief Justice follows the quoted remarks with a number of citations of authorities sustaining same.
And in the case of Simon v. State, 181 Ala. 90, 61 So. 801, where the question asked of the defendant (appellant), under circumstances similar to those here, and to which objection was sustained, etc., but which was not followed, as here, by a motion to "withdraw the case from the jury, etc.," was, "Tom (the defendant) is this the first person you have ever murdered?" the Supreme Court seems to us to clearly intimate that, the situation being presented to it, as it now is to us, and it having the authority of review, etc., which we now have (Watts v. Espy, supra), it would have there and then ruled, as we are now doing. This, for us, is controlling. Code 1923, § 7318. See, also, Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Standridge v. Martin, 203 Ala. 486, 84 So. 266; and Patterson v. State, 21 Ala. App. 22, 104 So. 866.
The case appears to have been, in the main, well and ably tried.
The other questions apparent, which seem, though we do not so decide, to involve no erroneous ruling, will not likely arise, in their present form, at least, upon another trial. They will not be considered.
For the error pointed out, the judgment of conviction is reversed, and the cause remanded.
Reversed and remanded.