Rains v. State

88 Ala. 91

• Court: Supreme Court of Alabama
• Decided: November 15, 1889
• Status: Published

Opinion

STONE, C. J.

After the able and exhaustive discussion of the question of change of venue called forth by the recent case of Hawes v. State, at the present term, it would seem to be unnecessary to repeat or reconsider what was then decided. The present application was supported by testimony much less convincing than was given in that case. In fact, taking all the testimony purporting to have been offered by the defendant, without reference to the proof in opposition, and it fails to make a case for a change of venue.

None of the particulars of the slander suit were proven, or offered to be proven. It was simply referred to by the witnesses, as introductory to the narration of their testimony proper. It tended to show why the participants and witnesses were brought together, and why they were present at the times and places mentioned. Up to this stage, there was nothing that could have done the defendant any injury. It was, at most, a reproduction of what is often witnessed in nisi prius courts — a statement of what caused the assemblage, and why the witness was present. Such statements are never supposed to harm any one, unless they unnecessarily consume the valuable time of the court. In the progress of the trial, however, an incident, considered in its relation to that slander suit, does seem to have contributed to the quarrel which preceded, and, according to appearances, precipitated the homicide. We allude to the trifling loan of twenty-five cents' by Alexander to the deceased. Alexander was the defendant in the slander prosecution, and defendant’s daughter was the subject of the alleged slander. Accepting the trifling loan from the alleged slanderer, seems to have angered the defendant, and contributed to, if it did not cause the quarrel. This authorized proof that there was a slander suit, and who were the parties to it. It did not authorize proof of the particulars, and none such was made or offered. There was no error in the court’s rulings on this question. It tended to give pertinency and point to the remark attributed to the defendant at the time deceased accepted the Joan.

While the defendant was testifying in his own behalf, he stated that, during the quarrel between him and the deceased, the latter spoke of his, the defendant’s daughter. In the cross-examination, he was asked if what the deceased had said in reference to his daughter was slanderous. This question was objected to, the objection overruled, and the defendant answered that it was not. There was nothing in this objection. The law has reasonable respect to the infirmities and natural resentments common to humanity, and certainly accords to a father some palliation, if slanderous words are uttered to him in reference to his own daughter. It may have weight in determining the animus and grade of the homicide, or other violence that may ensue upon it. It could not excuse homicide, or other high crime. Disproof of what might otherwise have been inferred— namely, that the reference to the daughter gave offense — was clearly competent, as tending to aid the jury in determining who was the aggressor in the encounter.

The threats of defendant, running through many months, and coming down to a time very near the homicide, were all properly admitted in evidence. Each and all of them were admissible on the inquiry of malice vel non.- — McAnally v. State, 74 Ala. 9; Garrett v. State, 76 Ala. 18.

We know of no rule of law which requires, or authorizes a witness, to institute a comparison between the truthfulness of different parts of his testimony. All should be truthful, and equally truthful, if the witness observes his oath; and it is for the jury to determine to what extent they will believe, or disbelieve, his testimony. The question was properly disallowed, as being immaterial in the aspect in which it was sought to have the witness answer.

It is always competent to prove the conduct of a prisoner at the time a crime was committed, or shortly afterwards. Many criminating circumstances are thus brought to light. And the fact that this was sought to be proved by the defendant himself, does not vary the question. He voluntarily made himself a witness in his own behalf, and, in doing so, submitted himself to cross-examination, to attack on his general character for veracity, and to every other mode of attack on his credibility, to the same extent as if he had been a disinterested witness, with the limitation expressed in Clarke v. State, 78 Ala. 474. “As to any fact or circumstance relevant to the issue, or which sheds light on the commission and character of the offense, though inculpatory, he waives his constitutional right to protection against being compelled to give evidence against himself. But the waiver extends no farther than to all such facts and circumstances as may tend to illustrate the particular offense charged. . . . Within these limits, the fullest cross-examination should be allowed; but its range into inquiries respecting past transactions and offenses, separate and distinct, is prohibited by the constitutional inhibition.” — Clarke v. State, 87 Ala. 71; Cotton v. State, Ib. 103.

Each of the charges asked by defendant was faulty, and was rightly refused. Charge five postulates that defendant was without motive to commit the homicide. The testimony, if believed, tends strongly to prove a double motive. First, deep-seated feelings of revenge, harbored by defendant against deceased, for knocking him down with a single-tree, as he alleged he had done. This was the basis of his threats, as testified by the witnesses. Second, the acceptance by the deceased of a trifling loan from Alexander. This was on the evening of the homicide, and shortly before it occurred, as testified to by the witness Simms. This witness also testified, that the acceptance of this loan led to the quarrel which ended in the rencontre and homicide. No phase of the testimony tends to support the hypothesis of this charge; and it was rightly refused for that reason, if for no other. — Knowles v. Street, 81 Ala. 357; Perry v. Stale, Ib. 30; Calhoun v. Hannan, Ib. 277; 3 Brick. Dig. 133, § 106; Williams v. Barksdale, 58 Ala. 288.

The same objection applies to charge 8. The prosecution didnot “rely on circumstancial evidence alone.” Simms, and even the defendant himself, gave positive testimony proving that defendant committed the homicide, if they be believed. Moreover, no testimony is shown which tended in the slightest degree to prove any fact which was inconsistent with the defendant’s guilt. A charge which is not supported in its hypotheses by any phase of the testimony, is abstract, and should be refused, no matter how correct the legal proposition it may assert. — Authorities supra.

Charge 20 postulates, as a fact, that deceased had “struck the defendant on the head with a single-tree.” There is no proof that such had ever been the case, unless the fact that the defendant gave that as the reason and basis of the threats the witnesses testified he had made. The assumption that this was a fact required its refusal, even if it had been otherwise unobjectionable. It had the further fault of being argumentative. — Cotton v. State, 87 Ala. 75; Goldsmith v. State, 86 Ala. 55; Hussey v. State, 86 Ala. 34; Fire Brick Works v. Allen, Ib. 185.

Tbe charge given by the court, in view of the testimony before the jury, asserts the correct rule on the doctrine of self-defense, arid is free from error. — DeArman v. State, 71 Ala. 381; Cleveland v. State, 86 Ala. 1.

The judgment of the Circuit Court is affirmed.

The day fixed for the execution of the sentence of the law being passed, it is ordered and adjudged by the court, that Friday, the 14th day of March, 1890, be set for such execution ; and on that day the sheriff of Morgan county will inflict the death penalty by hanging the said Robert Rains by the neck until he is dead — the execution to take place between the hours of 10 A. m. and 4 p. M., and strictly according to the provisions of the statute. — Code of 1886, § 4667.