Graham v. State

Supreme Court of Alabama

Graham v. State

171 So. 895, 233 Ala. 387, 1937 Ala. LEXIS 21

CourtSupreme Court of Alabama

DecidedJanuary 7, 1937

Docket6 Div. 843.

StatusPublished

Cited by9 cases

This text of 171 So. 895 (Graham v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Graham v. State, 171 So. 895, 233 Ala. 387, 1937 Ala. LEXIS 21 (Ala. 1937).

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The appellants were indicted jointly, the indictment charging, in two counts, murder in the first degree. On their trial they pleaded not guilty, and the jury returned the following verdict: "We, the jury, find the defendants guilty as charged." On this verdict the court adjudged them each guilty "of murder in the second degree" and sentenced W. E. Graham and Jim Chappell for a term of thirty years' imprisonment in the penitentiary, and sentenced Frank Graham for a term of ten years.

The verdict does not ascertain the degree of murder of which the defendants are guilty, nor fix the punishment, as required by the statute, and is therefore insufficient to support the judgment of the court. Code 1923, § 4457; Cobia v. State,16 Ala. 781; Howerton v. State, 191 Ala. 13, 67 So. 979; Jackson v. State, 226 Ala. 72, 145 So. 656; Roberson v. State, 175 Ala. 15,57 So. 829.

The witness Butler, offered by the State, testified as to what occurred between the deceased and the defendants Frank and Ethel Graham at Vogel's garage. During the examination of the defendant Ethel Graham, his counsel sought to elicit from him what, if anything, was said by deceased in respect to "Jim Chappell and the meat" at Vogel's garage in the transaction testified to by Butler. The court sustained the State's objection to the evidence, and in this committed error. The State having offered part of the transaction, the defendant was entitled to show it all, or give his version thereof. Williams v. State, 103 Ala. 33, 15 So. 662.

We are also of the opinion that the court erred in sustaining the State's objection to questions eliciting evidence of what was said and done by and between defendants Chappell and Frank Graham, while Chappell was leaving the scene of the difficulty and Frank Graham was going to the place of the difficulty. This was so clearly connected with the main fact in issue — the fight — as to be a part of the res gestæ thereof, and had a tendency to shed some light thereon. Ward v. Lane,189 Ala. 340, 346, 66 So. 499; Masterson v. Phinizy, 56 Ala. 336; Louisville Nashville Railroad Co. v. Pearson, Adm'r, 97 Ala. 211,215, 12 So. 176.

The other questions presented on the record appear to be without merit. For the errors noted, let the judgment of conviction be reversed. The defendants will remain in custody until discharged by due course of law.

Reversed and remanded.

ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.

On Motion of the State to Set Aside the Judgment of Reversal.

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The appellants were indicted jointly, the indictment charging, in two counts, murder in the first degree. On their trial they pleaded not guilty, and the jury returned the following verdict: "We, the jury, find the defendants guilty as charged." On this verdict the court adjudged them each guilty "of murder in the second degree" and sentenced W. E. Graham and Jim Chappell for a term of thirty years' imprisonment in the penitentiary, and sentenced Frank Graham for a term of ten years.

The verdict does not ascertain the degree of murder of which the defendants are guilty, nor fix the punishment, as required by the statute, and is therefore insufficient to support the judgment of the court. Code 1923, § 4457; Cobia v. State,16 Ala. 781; Howerton v. State, 191 Ala. 13, 67 So. 979; Jackson v. State, 226 Ala. 72, 145 So. 656; Roberson v. State, 175 Ala. 15,57 So. 829.

The witness Butler, offered by the State, testified as to what occurred between the deceased and the defendants Frank and Ethel Graham at Vogel's garage. During the examination of the defendant Ethel Graham, his counsel sought to elicit from him what, if anything, was said by deceased in respect to "Jim Chappell and the meat" at Vogel's garage in the transaction testified to by Butler. The court sustained the State's objection to the evidence, and in this committed error. The State having offered part of the transaction, the defendant was entitled to show it all, or give his version thereof. Williams v. State, 103 Ala. 33, 15 So. 662.

We are also of the opinion that the court erred in sustaining the State's objection to questions eliciting evidence of what was said and done by and between defendants Chappell and Frank Graham, while Chappell was leaving the scene of the difficulty and Frank Graham was going to the place of the difficulty. This was so clearly connected with the main fact in issue — the fight — as to be a part of the res gestæ thereof, and had a tendency to shed some light thereon. Ward v. Lane,189 Ala. 340, 346, 66 So. 499; Masterson v. Phinizy, 56 Ala. 336; Louisville Nashville Railroad Co. v. Pearson, Adm'r, 97 Ala. 211,215, 12 So. 176.

The other questions presented on the record appear to be without merit. For the errors noted, let the judgment of conviction be reversed. The defendants will remain in custody until discharged by due course of law.

Reversed and remanded.

ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.

On Motion of the State to Set Aside the Judgment of Reversal.

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171 So. 895, 233 Ala. 387, 1937 Ala. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-state-ala-1937.

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