[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 170 About December 7, 1921, the body of a man was found in the Warrior river, just below a bridge which crosses the river, on the Jasper and Birmingham road. The man's throat had been cut, severing the jugular vein. He was described as having dark sandy short hair, blue eyes, dressed in a mackinaw coat, besides other clothing, and wearing ordinary work shoes, one of which had been slit at the toe with a knife. The body had attached to the feet an automobile mud chain. The body and clothing were muddy and gave evidence of having been in the river for some days. Decomposition had set in. The man found weighed about 170 pounds.
On the night of November 18, 1921, the defendant, together with his brother Sammy, and one Brown, took a man, named Joe Carter, from the mining camp of defendant, located about 21 miles from the bridge where the dead man was found. They marched him out of camp to the camp of a man named Sherer, where they got a Ford car, and from thence proceeded to the bridge where the body was found. Then, according to the testimony of Brown, Carter was taken out of the car and thrown into the river. The defendant, of course, denies this, and says he *Page 174 put Carter out, paid him the amount due him for labor, and told him to go. There are many facts tending to identify the body found as being Joe Carter, and many tending to prove that it was not. There was also much testimony as to motive, and the movements of defendant and his party on the night of November 18th, not necessary here to set out, except as may hereafter appear in passing upon the questions presented.
All of the circumstances detailed in the evidence were within a distance from Jasper, which we judicially know is the county site of Walker county, and, being charged with a knowledge of the county lines and distances, we must hold that the venue of the crime was sufficiently proven. 13 Mich. Dig. 656, par. 179 (3½).
We must also hold that, under the facts as presented, the evidence was sufficient to warrant the submission of the question of identity of the dead man and the guilt vel non of the defendant to the jury. That being the case, the general charge as requested by defendant was properly refused.
The dead man was being identified partially by the coat worn by him, which was the same kind of a coat as that worn by Carter at the time he was taken from defendant's camp. It was therefore competent for the state to prove that no one else about the camp wore such a coat at that time. Its probative force was for the jury.
The witness Brown, introduced by the state, under one phase of the testimony, was a participant in the crime of which the defendant was charged. Mr. Pennington, alluded to, was at that time the state's solicitor. The witness Brown was at that time under arrest, and in jail on the same charge as is this defendant, and defendant's counsel had elicited from Brown the fact that he had made a statement to the solicitor at the jail in an effort to discredit Brown's testimony. In rebuttal, it was certainly competent for the state to show that the statement was made voluntarily and without any promise of reward, and it was not error for the court to permit the witness to say that the statement then being made was true.
The question asked the witness Kilgore by defendant's counsel, as to the sale of a carload of coal and the disposition of the money, was res inter alios acta, and therefore was irrelevant.
The questions asked state's witness Wilson on cross-examination, to which exceptions were reserved, called for evidence entirely irrelevant and immaterial to any issue in this case. Nor could the answer to the questions asked tend to show a bias on the part of the witness.
At the time the question to the witness Geesling was asked, "On the way down there, didn't La Fayette say to you he was going to have his money if he had to kill a man, and didn't you reply to La Fayette that they saw us with him?" was asked before La Fayette had been examined as a witness, and the answer would in no way have tended to show bias or ill feeling on the part of the witness then testifying against defendant.
The questions made the basis of assignments of error 6, 8, 9, and 10, call for testimony that was hearsay and does not derive its value from the credit to be given the witness himself. Such testimony is inadmissible. 1 Greenleaf, § 99.
Questions made the basis of assignments 7, 11, 12, and 13 called for facts, not a part of the res gestæ, and not tending in any manner to throw light on the crime charged. The court did not err in sustaining objections to these questions.
The statement of the trial judge made the basis of assignment 14 was without error. When a trial judge has made an erroneous ruling during the progress of a trial, he not only may, but it is his duty to, correct it, and to state the correction to the jury in plain terms, that the jury may be properly guided. The statement objected to is a correct statement of the law.
The rulings of the court on the admission of testimony as to the acts and declarations of Sammy Snoddy and Brown, on the night of November 18th, just before Carter was taken out of the Snoddy camp, were without prejudicial error. Whether the fact of a conspiracy between defendant and these parties had been established by the evidence, at the time the questions were asked the witness Posey, is of no moment. The state's evidence, as a whole, did tend to prove a conspiracy between these parties, dating from a time prior to Carter's being taken from the Snoddy camp, and the fact, if it be a fact, that they did kill the deceased, Carter, in furtherance of a common purpose. The jury may infer that the common purpose was the murder of the man against whom they were moving, in concert. Hunter v. State,112 Ala. 77, 21 So. 65.
Assignments 25 and 26. It may be stated that the witness Legg had not qualified as an expert in such sort as that he might give an opinion of how long the body of the dead man had been in the water when found. Daisy Anderson v. State (Ala.App.) 99 So. 778.1 But the evidence as to how long the body had remained in the water was material, relevant, legal, and competent, and might have been testified to by an expert. There was no ground assigned that the witness had not qualified as an expert. The general objections were not sufficient to raise this question.
Assignment 28. Whether defendant bought groceries for his mother, with a check which had been given him for Carter, is irrelevant. *Page 175
Assignments 31, 32, 33, 34, and 35. The questions made the basis of these assignments called for testimony that was hearsay, or the questions were not framed with sufficient definiteness to confine the answer to a description of Carter. Besides, the witness was later permitted to describe the man who came to the store in Birmingham at a date subsequent to the 18th of November, and, further, to state that he said his name was Carter. This was all defendant was entitled to prove by this witness.
Assignments 36, 37, 38, and 39. These assignments are based upon the action of the court in permitting the state, over the objection of defendant, to lay predicate for the impeachment of the defendant, testifying as a witness, by reading from the transcript of the testimony of defendant, taken before the coroner's jury, and in allowing the state to introduce such transcript to contradict the testimony then being given. The objection to this testimony is based upon the theory that the transcript of the testimony before the coroner's jury contained a confession of defendant. This is not the case. There were, perhaps, declarations against interest, but in no sense was the defendant's testimony a confession or an admission of guilt. The transcript of the testimony of defendant before the coroner was admitted in accordance with the rule recognized by us in Humber v. State, 99 So. 68.2 There was no question as to the identity or correctness of the transcript. There was no invasion of defendant's constitutional rights, in that he was forced to give evidence against himself. He was not under arrest before the coroner and, so far as the evidence discloses, testified voluntarily. Such testimony not being a confession or admission of guilt, and being introduced for the purpose of contradicting the testimony then being given, was legal and admissible. Daisy Anderson v. State, supra; Macon v. State, 179 Ala. 6, 60 So. 312. It may be added that the defendant testified before the coroner's jury before he was arrested or charged with this homicide.
Assignments 40 and 41. The showing made for defendant's absent witness, Hunter, contained statements which the court had held to be illegal. The legal parts of the statement were read to the jury, and the court properly refused to permit the jury to take with them into the jury room the entire writing containing illegal matter.
The chains were legal evidence and were properly taken by the jury during their deliberation.
Assignments 43, 44, and 45. These statements of the witness are clearly illegal and irrelevant.
Assignment 42. This statement of the solicitor is not of a fact, but merely states his opinion. The court did not err in refusing to exclude it. The opinion in the case of Moulton v. State, 199 Ala. 411, 74 So. 454, is based upon the theory that the use of the word "negro" was calculated to arouse race prejudice.
Charge B, requested by defendant, exacts too high a degree of proof. The only burden resting on the state in this regard is that the evidence should be so strong as to convince the jury of the guilt of defendant, beyond a reasonable doubt.
Charge C had already been given.
Charge D omits the word "good" from character. This in itself would be sufficient to condemn the charge. The general rule attempted to be stated in this charge had already several times been given.
Charge E seems to be incomplete, and, if not, is an argument pure and simple.
Charge F is bad. The guilt or innocence of the defendant cannot be predicated upon a single fact in evidence, but must rest on the entire evidence. McKenzie v. State 19 Ala. App. 319,97 So. 155.
Charge H is not predicated upon a consideration of the evidence. Moreover, the charge is covered by given charge 51.
Charge I has many times been held bad. Ex parte Davis, 184 Ala. 26,63 So. 1010.
Charge J is covered by given charge 5 and other charges given.
Charge K pretermits a consideration of all the evidence, and for that reason is bad. Moreover, the correct rule on this question had already been given in written charges 31 and 38. Charge K, as written, is invasive of the province of the jury.
Charges L and N are covered by given charges 5, 12, 28, and 37.
Charge M, in the first place, is invasive of the province of the jury, and, in the next place, is argumentative.
Charge O is covered by given charge 24, and charges P, Q, and R are the general charges which have already been passed upon.
Charges S and T are bad. Ex parte Davis, supra.
Charge U is covered by charge 8.
Charges V and W are arguments, and are misleading.
Charge X is bad. The jury might conclude that there were some of the elements of murder lacking, and still convict the defendant of a lower degree of crime. The charge is misleading.
Charges AA and BB do not state the correct rule. The rule applies to testimony then being given. Did the witness swear falsely and willfully to a material fact in the case then on trial?
Charge CC is argumentative and misleading. The correct rule regarding this proposition was given by the court in written charge 41.
The defendant has had a fair and an impartial *Page 176 trial. We have carefully examined the whole record, and find no prejudicial error affecting the defendant's rights, and the judgment is affirmed.
Affirmed.
1 19 Ala. App. 606.
2 19 Ala. App. 451.