Opinion
1 Div. 827.
December 20, 1934.
Appeal from Circuit Court, Monroe County; F. W. Hare, Judge.
Pitts Pitts, of Selma, J. D. Ratcliffe, of Monroeville, and G. O. Dickey, of Evergreen, for appellant.
Acts and declarations done and made before the formation of the conspiracy are not admissible against coconspirators unless brought home to them. Stewart v. State, 26 Ala. 44; Lancaster v. State, 21 Ala. App. 140, 106 So. 609. Acts and declarations of a member of a supposed conspiracy are not admissible if made after the common enterprise is at an end, except as against the party who makes them, or unless made in the presence of coconpirators and assented to by him, or unless a part of the res gestæ. Burns v. State, 226 Ala. 117, 145 So. 436; Lancaster v. State, supra. To authorize admission of acts and declarations of one of the alleged conspirators, a proper predicate must first be laid by introduction of evidence aliunde prima facie sufficient, in the opinion of the trial court, to establish the existence of such conspiracy. Collins v. State, 137 Ala. 50, 34 So. 403. Details of a former difficulty between the deceased and one of the alleged conspirators prior to the formation of the conspiracy are not admissible against one of the alleged conspirators not involved in such former difficulty. Fonville v. State, 91 Ala. 39, 8 So. 688; Jones v. State, 17 Ala. App. 394, 85 So. 830; Martin v. State, 77 Ala. 1; Prior v. State, 77 Ala. 56. A trial judge who uses language which tends to bring an attorney into contempt before the jury, or makes any intimation which tends to prejudice them, commits reversible error. Dennison v. State, 17 Ala. App. 674, 88 So. 211.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., and H. M. Caffey, Jr., Sol., of Brewton, for the State.
Testimony of what was said and done immediately after the fatal shot was fired was admissible as part of the res gestæ. Moreover, a conspiracy having been prima facie established, by evidence aliunde, any acts or declarations of the coconspirators made in appellant's presence and with his assent were admissible against him. Collins v. State, 138 Ala. 57, 34 So. 993; Morris v. State, 146 Ala. 66, 41 So. 274; Johnson v. State, 87 Ala. 39, 6 So. 400; Brindley v. State, 193 Ala. 43, 69 So. 536, Ann. Cas. 1916E, 177; Pynes v. State, 207 Ala. 413, 92 So. 666; Burns v. State, 226 Ala. 117, 145 So. 436; Bachelor v. State, 216 Ala. 356, 113 So. 67; Cline v. State, 25 Ala. App. 433, 148 So. 172; Newsom v. State, 15 Ala. App. 43, 72 So. 579; Hardeman v. State, 14 Ala. App. 35, 70 So. 979; Durden v. State, 18 Ala. App. 498, 93 So. 342; Nelson v. State, 130 Ala. 83, 30 So. 728; Tate v. State, 23 Ala. App. 122, 122 So. 461; Robertson v. State, 23 Ala. App. 267, 125 So. 60. Evidence of the former difficulty, some thirty or forty minutes before the fatal difficulty, between deceased and a cousin of appellant, was admissible as part of the res gestæ. 16 C. J. 537; Collins v. State, supra; Hainsworth v. State, 136 Ala. 13, 34 So. 203; Carter v. State, 219 Ala. 670, 123 So. 50. It was also admissible on the theory of a conspiracy. 16 C. J. 656; Lockett v. State, 218 Ala. 40, 117 So. 457. If the details of the former difficulty were not admissible, it was proper to show that blows were struck and shots fired in order to show the gravity of the difficulty. White v. State, 209 Ala. 546, 96 So. 709. The language used by the court was merely for the purpose of expediting the trial, and was not erroneous. Doss v. State, 224 Ala. 90, 139 So. 290; Watson v. State, 155 Ala. 9, 46 So. 232. Moreover, there was no appropriate motion made and ruling thereon to authorize review on appeal. Lambert v. State, 208 Ala. 42, 93 So. 708. Abstract charges or those substantially covered are refused without error. Code, § 9509.
The trial court, as well as the jury, was warranted, from the state's evidence and theory of the homicide, in finding that there was a conspiracy between this defendant, his uncle, Bonner Griffin, and cousin, Roy Griffin, to visit the store of Williamson, where the killing occurred, to renew with the deceased, Mixon, or avenge, the former difficulty between Roy Griffin and said deceased, Mixon; that Roy and others left the store shortly after the first difficulty and returned to or towards the home of Bonner Griffin, where they met or came in contact with Bonner Griffin and the defendant, and it could well be inferred that the latter were informed of the previous difficulty and immediately went to the Williamson Store, where the deceased was, for the purpose of renewing the difficulty or, in fact, for the purpose of killing the deceased, Roy going in the front entrance to the store, and the defendant and Bonner Griffin, being heavily armed, entering the store from the rear, when the said defendant immediately shot the deceased, who, according to the state's evidence, was making no hostile demonstration and was not at the time engaged in an altercation.
There being evidence establishing a conspiracy, the trial court did not err in admitting what was said by Bonner immediately after the shooting while in the store or immediately after they left the store, as it was not only a part of the res gestæ but was in the presence and hearing of the defendant. Nor was there error in permitting the state to prove that Roy drew a pistol, upon returning to the store, and just before the killing.
The trial court excluded all details of the former difficulty, and merely permitted the witnesses to show that shots were fired and which merely went to the nature or gravity of same. White v. State, 209 Ala. 546, 96 So. 709. There was no proof as to who fired the shots or the result of same. Moreover, the witnesses both for the state and defendant, without objection, referred generally to the first and second as having first heard two shots and later one shot, thus distinguishing the two difficulties by the number of shots fired.
When Bishop Williamson was on the stand, after testifying as to the entire transaction, and that Roy Griffin exhibited a pistol, he was asked on recross-examination:
"Now, Your Honor, we ask the Court to permit us to show how deep the pocket of this witness' coat is.
"The Court: I think it is utterly immaterial."
We also think it was immaterial to show the depth of the pocket of the witness Williamson. Counsel may have meant the pocket of Roy, but such was not the question proposed. Next:
"It is suggested by Counsel that we offer that for the purpose of proving that an ordinary pistol could not be concealed in that coat for whatever it is worth.
"The Court: I still sustain the objection, Mr. __________, and I think an attorney of your ability wouldn't be taking up the time of the Court on propositions of that kind.
"Counsel for defendant: We except, if Your Honor please."
Conceding that all of this related to the pocket of Roy Griffin, and not the witness, we do not understand that there was an issue as to whether or not the pistol was concealed, but, apart from this, the coat of Roy was introduced, and the jury had the opportunity of examining the pocket. Much was said in oral argument as to the remark of the court to counsel when ruling upon this question. We may concede that the remark may have exhibited some little impatience on the part of the court, but do not think that it did or could result in any injury to the defendant. Moreover, the exception noted was to the ruling of the court and not the remark. Had counsel objected or excepted to the remark, the court would no doubt have withdrawn or neutralized same with a pleasant or perhaps complimentary explanation.
There was no error in refusing the defendant's requested charge C. In the first place, it is abstract, as the defendant was not himself in imminent peril; his theory of self-defense being that he fired the fatal shot to save or protect Roy Griffin from a serious attack by the deceased. Upon this theory, the charge was faulty, as it pretermits any fault or responsibility on the part of said Roy Griffin in provoking or bringing on the difficulty. It is well settled by the decisions of this court that he who invokes self-defense in protection of a third person is placed in the shoes of him whom he seeks to protect. Mitchell v. State, 129 Ala. 23, 30 So. 348; Sherrill v. State, 138 Ala. 3, 35 So. 129; Morris v. State (Ala. Sup.) 39 So. 608; Vaughan v. State, 21 Ala. App. 204, 107 So. 797; Id., 214 Ala. 384, 107 So. 799.
While discussing only the points argued by the appellant's counsel, we are not unmindful of our duty to consider all rulings involved, which has been done, and we fail to find where the trial court has committed any reversible error, and the judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.