Humber v. State

99 So. 68, 19 Ala. App. 451, 1923 Ala. App. LEXIS 258

• Court: Alabama Court of Appeals
• Decided: June 30, 1923
• Docket: 5 Div. 451.
• Status: Published

Opinion

FOSTER, J.

The defendant, appellant, was convicted of murder in the second degree. The deceased, Lucius F. Humber, and the defendant, Leila O. Humber, at the time of the killing, were husband and wife. They had both been previously married, and they both had children by their first marriage. They had two children by their marriage, a girl about eleven years of age and a boy •eight years of age at the time the killing occurred. They were living in Girard. Russell county, Ala. Their home was about a mile or two from the city of Columbus, Ga., in which city the deceased was doing business with his associate in the name of Blanchard, Humber & Co.

At the time of the killing, the two children' of defendant and deceased lived with them, and a son of the defendant by a former marriage, who had been sick, was in the home with them. They also' had a cook and a chauffeur. The- deceased went to the city of Columbus to his place of business, spent the day, and returned late in the afternoon in his car to his home. There was testimony on behalf of defendant to show that deceased was under the influence of- intoxicants to some extent and testimony to the contrary on behalf-of the state. The proof showed that the deceased was addicted to the use of morphine.

t The killing occurred just after supper on the evening of May 18, 1922, and there was no eyewitness to the killing; the shooting occurred in the bedroom of the deceased. The only testimony with respect to the actual res gestee was the dying declaration of the deceased, testified to by several witnesses and the testimony of the defendant.

* There was evidence describing the locus quo, and diagrams of the room in which the killing occurred were introduced in evidence, 'and these appear in the record.

'The testimony for the state, connecting the defendant with the killing, was the dying declaration of the deceased repeated in varying forms as testified to by a number of witnesses., The substance of the dying declaration was that the deceased was going into his bedroom and that the defendant shot'him in the back from a closet and that he turned and grappled at the pistol, but was so weak he could not hold it and after he turned it, loose the, defendant kept shooting him. There was evidence of .five bullet wounds in the body ofc deceased, and also evidence as to the places in the room where various bullets struck.

The evidence of the defendant tended to show that as she was passing through th.e deceased’s room he pointed the pistol at her, saying he was going to kill her and then kill 'himself; that she rushed to him and he shot the pistol once, and she grappled at it after the deceased fired; there was a struggle and the pistol fired rapidly during the struggle; that she and the deceased both had hold of the pistol and were struggling over it; that after it ceased firing she jerked the pistol and ran out and pulled the door to; that in the fight she received a wound on the thumb and finger of her right’hand. Controversies had arisen between the defendant and the deceased with reference to . their property rights, both of them having property of ’separate ownership.

The. insistence of the state was that the defendant began the trouble or shooting, surprising the deceased in his own room and shot him to death without any provocation. The defendant’s insistence was that the deceased began the shooting, and the defendant rushed to him, gra.ppled with him for the pistol, and in' the scuffle and struggle the pistol was discharged and some of the bullets entered the body of the deceased, causing his death.

Dr. Elrod, who was examined as a witness for the state, and testified to the different wounds on the body of the deceased, and had testified that a bullet entered the upper part of the arm, was asked the following question by counsel for state: “From your experience in examining wounds of that sort and character, and as a practicing physician, would you say that wound indicated from which direction it was fired, whether from the front or rear?” Over the timely objection of defendant the witness answered, “X would say it wasn’t fired from the front.” Motion to exclude the answer was overruled. The witness had testified that he was not an expert on the question as to the direction from which shots were fired. ’He was a medical,, expert only.

In McKee’s Case, 82 Ala. 32, 2 South. 451, Dr. Owen, a physician who dressed the wound of deceased after describing the wound was,asked for his medical opinion as to whether the wound was given by a person standing in front of the deceased or be- Mud Mm, and CMef Justice Stone, speaking for tiie court, said:

“The opinion of the witnesses, based on the appearance of the wound, that the blow was inflicted from the front, and not from the rear, 'was properly excluded. J?he wound was susceptible of description; and it was properly left to the jury to' determine from what direction the blow came.” Walker v. State, 58 Ala. 393; Bennett v. State, 52 Ala. 370.

In the instant case the matter about which the opinion of Dr. Elrod was sought was 'an- inference from facts which it required no peculiar skill or particular fitness to solve, and which it was the province of the jury alone to determine. There is no appreciable difference between the opinion asked for and a request for the witness’ opinion as to whether the defendant fired the shot from the rear. • It was proper for the witness to describe the wounds, and for the jury to draw the inference as to the direction from which the shot was fired. The opinion of the witness was inadmissible,I arid the court erred in permitting the testimony.

The evidence showed that the deceased was mortally wounded and made certain statements to Dr. Elrod and others, under circumstances which showed that he was conscious of impending .death. Dr. Elrod, a witness for the state, was allowed to testify over objection of defendant that deceased said, “I want some hot clothes laid over my stomach.” “I’m hurting so bad.” “Hot clothes are sometimes good to ease pain.”

It was not shown just how long after the shooting the declaration was made. The doctor had been called to attend the deceased and had gone from his home to the home of the deceased.

“Acts and declarations, to be admissible under the principle of res gestae, must be substantially contemporaneous with the main fact under consideration, and so closely connected with it as to illustrate its character.” Johnson v. State, 94 Ala. 35, 10 South. 667; Fonville v. State, 91 Ala. 42, 8 South. 688.

The declaration of deceased was not so intimately connected in time with the shooting as to constitute part of the transaction or to illustrate its character. It was not of the res gestae.

It is essential to the admissibility of dying declarations that at the time they were made the declarant should have been in actual danger of death, that he should then have had á lull apprehension of his danger, and that death has ensued. Dying declarations to be admissible must relaté to the facts and circumstances of the shooting, and are admissible to prove any relevant fact embraced in the res gestae of the killing, if the deceased -would have been authorized to testify to it if he had ll'ed and been present at the trial. Oliver v. State, 17 Ala. 587, Walker v. State, 52 Ala. 192. Dying declarations are limited to the act which caused death or the crime and the res gestae. Pulliam v. State, 88 Ala. 1, 6 South. 840.

The statements called for were not part of the res gestae of the shooting,' did not relate to the facts, but related to the suffering of deceased and his desire for relief from pain, shed no light on the shooting, and were inadmissible. But error in admitting such testimony was harmless, and will not work a reversal.

That portion of the testimony of Tom Humber as to dying declaration of deceased, “that he wanted me to remember,” and “that he wanted me to distinctly remember,” was inadmissible, and the court erred in refusing to exclude it. The dying declarations testified to by certain witnesses, that “she shot me like a dog,” “she- did her very best, the old heifer,” and other similar expressions, were inadmissible; but objection, was not made on the trial, and cannot be raised for the first time here.

Dr. Elrod, a witness for the state, was-asked on cross-examination if he did not make certain statements on the preliminary trial of the defendant, and to refresh his recollection counsel for defendant read from the transcript of his testimony on the preliminary hearing.

“The' testimony of a witness, on the preliminary examination of the defendant before a committing magistrate, having been reduced to writirTg and subscribed, and being produced in court on the trial, he cannot be cross-ex-\ amined as to particular parts, or gai'bled extracts from it, without allowing him to read or hear -the entire deposition; por can the deposition itself be treated as original evidence, or received for any other purpose than that of contradicting or impeaching the- witness, and the courit may so instruct the jury.” Kennedy v. State,, 85 Ala. 326, 5 South. 300.

“When it is sought to impeach a witness by showing discrepancies between his testimony and his former statements on the preliminary investigation before a. committing magistrate, which were reduced to writing by the magistrate, and, for this purpose, he is cross-examined as to such former statem'ents, it is not proper to read' detached portions of them, and ask the witness if he did.not so testify, but his entire testimony should be shown or read to him.” Wills v. State, 74 Ala. 21; Phoenix Ins. Co. v. Moog, 78 Ala. 310, 56 Am. Rep. 31; Ployd v. State, 82 Ala. 22, 2 South. 683; Carden v. State, 84 Ala. 420, 4 South. 823.

“In Gunter v. State, 83 Ala. 96, 3 South. 600,”-it was “held that the trial court had properly refused to permit a witness to be interrogated on cross-examination as to particular statements made before a committing magistrate on preliminary hearing, such statements having been reduced to writing, and being then in court in the possession of counsel, but not shown to the witness. It was considered that the court would not undertake to inquire whether the purpose of such a mode of examination was to contradict and impeach the witness, or to test, or even refresh, his memory. It is the settled rule in this state, as it is of nearly all the states, and as it was in England prior to 1854, that the proper and necessary course is to put the writing, -where that can be had, in the hands of the witness, and to ask him whether -it is his writing or deposition.” B. R., L. & P. Co. v. Bush, 175 Ala. 49, 56 South. 731; Wills v. State, 74 Ala. 21; Phoenix Ins. Co. v. Moog, 78 Ala. 310, 56 Am. Rep. 31; Floyd v. State, 82 Ala. 22, 2 South. 683; 1 Greenl. Ev. (16th Ed.) §§ 483-465a, and -notes to last-cited section.

The court did. not err in sustaining the objection of the state to this mode of examination of .the witness.

Defendant’s counsel offfered to show on cross-examination of Dr. Woolridge that the relations between deceased and the defendant had been good for 10 or 12 years.

Enmity or ill feeling between parties is a fact to which a- witness may testify, if he knows it. It is generally made manifest by the demeanor and conversation of the parties ; and third persons, observant vof, and familiar with, their intercourse, and the state of their feelings, as shown by their conduct and conversation, may testify to it Sas a fact. It- stands in the category of health, sickness, good humor, anger, earnestness, jest. Polk v. State, 62 Ala. 237; McHugh v. State, 31 Ala. 317; Wilkinson v. Moseley, 30 Ala. 562; 1 Brick. Dig. 875, §§ 993, 998, 999, 1007; Holmes v. State, 100 Ala. 83, 14 South. 864; Butler v. State, 16 Ala. App. 234, 77 South. 72; Nelson v. State, 11 Ala. App. 221, 65 South. 844. It was relevant to prove ill will between the parties as tending to show motive for the killing and to illustrate their conduct in the fatal difficulty. It was likewise relevant to prove friendly relations as tending to show absence of such motive and in illustration df the conduct of the parties at the time of the shooting.

The photographs marked Exhibits A, B, O, and D, respectively, were properly admitted in evidence.

There was no error in declining to admit in evidence fragmentary paper writings marked Exhibits 2 and 3, as they were unintelligible and meaningless.

The fragmentary paper writing marked Exhibit 4, contained the name of Leila (the defendant) was shown to be in the handwriting of deceased, and contained the postscript, “I am going-to kill her don’t breathe to any one.”

Olive v. State, 2 Ala. App. 77, 57 South. 66:

“In a case where it was competent for the defendant to introduce evidence of threats made against him by the deceased, it was er"ror for the court to decline to allow him to show by a witness that on the night of the homicide and shortly before the fatal difficulty, and near the place where it occurred, the deceased said: T am a g-d d--n black snake. I killed one man over in Mississippi,' and I am going to kill another tonight.’ And,this is true notwithstanding defendant had the advantage of evidence of other threats, since the threats here set forth wer.e' entirely independent of such other threat, and made under circumstances rendering it competent and relevant.”

It was a matter of inference for the jury whether the deceased made such threat against the- defendant, 'and the weight or probative force was a question entirely for the jury. The court erred in not .allowing the paper in evidence.

There is no merit in the other exceptions to the evidence. •

Charge K was faulty in pretermitting defendant’s freedom from fault in bringing on the difficulty. Bluitt v. State, 161 Ala. 14, 49 South. 854. Charge N was properly refused. It singled out the evidence. Councill v. Mayhew, 172 Ala. 295, 55 South. 314; 12 Michie’s Dig. p. 474, § 196, arid’ authorities. It was also argumentative and invasive of the province of the jury, and gave undue prominence to certain specific facts. 1 Mayfield, Dig. 168, § 11; 6 Mayfield, Dig. p. 108, § 11, and page 111, § 18.

Charge O was faulty in prefer-, mitting defendant’s freedom from fault in bringing on the difficulty.

Charge P was properly refused. It pre-termits defendant’s freedom from fault, is argumentative and invasive of the province of the jury.

Charge R is faulty, in that it ignores a constituent element of self-defense — freedom from fault in bringing on -the difficulty — and gives undue prominence to specific facts.

Charge S is argumentative, and preter-mits defendant’s freedom from fault in bringing on the difficulty, and was properly refused.

Charge T is misleading, does not correctly state the law, and was properly refused.

The argument of special counsel for ■the state that, “under the theory of defendant’s defense, the threats contained in the letter have no probative force,” was clearly within thé bounds of legitimate argument.

The defendant filed a motion for a new trial on many of the grounds which have been decided in this opinion and on the additional ground- that two photographs showing .the location of a gate on the premises, though not introduced in evidence, were taken by the jury into the jury room. It appears that these photographs were picked up by mistake and placed with other photographs which were in evidence, and that neither party was responsible for the mistake.

It does not affirmatively appear that the defendant may have been prejudiced by the presence of the photographs in the jury room and a new trial should not have been granted on this ground. Leith v. State, 206 Ala. 439, 90 South. 687, and authorities, cited.

For the errors indicated the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.