Opinion
1 Div. 836.
May 7, 1929.
Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.
James Nixon Ousley was convicted of murder in the second degree, and he appeals. Reversed and remanded.
J. D. Ratcliffe, of Monroeville, for appellant.
There was no dispute as to the shooting of deceased, location of the wounds, or the position of the parties; and the admission in evidence of the clothing worn by deceased was prejudicial error. Hyche v. State, 22 Ala. App. 176, 113 So. 644; Id., 217 Ala. 114, 114 So. 906; Jones v. State, 22 Ala. App. 472, 116 So. 896; Boyette v. State, 215 Ala. 472, 110 So. 812. There was no evidence that the clothing was in the same condition when offered in evidence as it was when taken off the body of deceased. Pate v. State, 150 Ala. 10, 43 So. 343. Defendant should have been permitted to show that he ran to Mrs. Rumley's with two pistols in his hands. Jones v. State, 20 Ala. App. 247, 101 So. 331; Nelson v. State, 130 Ala. 83, 30 So. 728; 16 C.J. 579.
Charlie C. McCall, Atty. Gen., and L. S. Biggs, Sol., of Monroeville, for the State.
The clothing worn by the deceased at the time of the killing, showing the location of the wounds in the body, was admissible in evidence. Hyche v. State, 22 Ala. App. 176, 113 So. 644; Id., 217 Ala. 114, 114 So. 906; Duncan v. State, 22 Ala. App. 382, 115 So. 856. There was no objection as to this, but proper predicate was laid for its introduction. In homicide cases, the conduct, demeanor, and expressions of the accused, at or about the time of the homicides, are matters admissible in evidence against, but not for, him, unless part of the res gestæ. Maddox v. State, 159 Ala. 53, 48 So. 689; Jones v. State, 181 Ala. 63, 61 So. 434. The evidence offered as to defendant's running to Mrs. Rumley's, four or five minutes after the killing, with two pistols, one claimed to be his own and the other one taken by him from the body of deceased, was no part of the res gestæ. Lundsford v. State, 2 Ala. App. 38, 56 So. 89; Pitts v. State, 140 Ala. 70, 37 So. 101.
In this case the deceased was shot with a pistol. One of the shots penetrated the clothing of deceased. Where this is the case and the clothing is properly identified, it is proper to permit such clothing as was punctured by the bullet to be admitted in evidence as a part of the res gestæ. Hyche v. State, 22 Ala. App. 176, 113 So. 644; Id., 217 Ala. 114, 114 So. 906. We think the evidence shows a sufficient predicate for the introduction of the clothing; but whether so or not the objection to the introduction of the clothing was on other grounds.
The defendant claims and testified that deceased drew a 22-calibre pearl handle Smith and Wesson pistol and had it in his hand attempting to use it when defendant shot; that deceased died with the pistol in his hand; that when deceased fell defendant went to him, took the pistol from his hand, and carried it with him to the home of Mrs. Rumbley, where he immediately went, arriving there five minutes after the homicide. There was introduced in evidence a pistol which defendant identified as the pistol he took from the deceased, and there was testimony tending to identify the pistol as being the property of deceased and that he habitually carried it. This evidence was disputed by the state.
It was error for the court to refuse to permit the defendant to prove that defendant ran from the scene of the homicide with two pistols in his hand and that when he got to Mrs. Rumbley's in five minutes he still had both pistols and one of them was the pistol identified as being the pistol of deceased. This is not a question of the res gestæ, but of corroboration of defendant's testimony in explanation of how he came into possession of the pistol of deceased and of his testimony that deceased was armed at the time of the fatal shooting. Jones v. State, 20 Ala. App. 247, 101 So. 331. This was exceedingly important testimony for defendant, rendering a reversal necessary.
For the errors in rulings regarding this line of testimony, the judgment is reversed and the cause is remanded.
Reversed and remanded.