McLeroy v. State

HARALSON, J. 1. There was no error in sustaining the demurrer to the plea in abatement to the indictment. Linnehan v. The State, 116 Ala. 471. 2. The State introduced one W. M. Wallace, who testified that he saw Evans on Monday morning after Rowe was killed, and that he told witness that he killed Rowe because he accused him of stealing his money, and because Rowe cut him. This conversation the State introduced without objection by defendant, and as a part of this conversation which the State was drawing out, Evans told witness, — explaining when he cut Rowe, — that after Rowe cut him and accused him of stealing his money, he, Evans, started in to kill him. The defendant,— quoting the language of the bill of exceptions, — “moved to exclude what the witness had said as to how Evans started in to kill him, because not made in the presence of defendant, and it is illegal, irrelevent and immaterial,” which .motion the court overruled. The ruling was justified on the grounds that the State was introducing a conversation between witness and Evans to which no objection was raised on the part of defendant, until all of it had been brought out, and he then moved to exclude a part of it. This, if the evidence sought to be excluded was injurious to him, was an experiment he was not authorized to make. He should have objected in the beginning. But, we ax-e unable to see axxy [283] injury resulting to defendant from the ruling, even if erroneous, since the evidence was favorable to defendant. It simply showed, if true, that Evans and not he was the one who slew Rowe. 3. There were but two witnesses to the homicide, Evans and defendant. They were jointly indicted but separately tried, and Evans was convicted of murder in the second degree. On the trial of defendant, both Evans and he swore that he had nothing in the world to do with the killing of Rowe, and never saw Rowe’s money after they left Gadsden. The State introduced several witnesses who testified that Evans told them, at different times, that he himself did the killing and defendant had nothing to do with it. The evidence introduced was as pointed, — as to any conspiracies between the two, — that defendant had never entered into any conspiracy with Evans, either to rob or kill Rowe, or that he ever did in fact rob him. The testimony of each of these witnesses on these points, was such, as without more, the general charge could have been given for defendant. The other evidence tends to show that Rowe had been robbed of his money; that he had about $40 when he went to Gadsden on Saturday, in the evening of which day he was killed. If he spent any of it while there, it is not shown. It further shows, that he, in his own conveyance, and Evans and defendant in theirs, left Gadsden and travelled together to the place where he was killed, and that on the way he showed J. W. Smith, who accompanied him about five miles out, some six or eight dollars in silver and a roll of paper money about an inch thick, the outside bill of which was a five dollar note ; and when his body was examined the next day at the place of the killing, there was found on him only twenty-five cents in dimes and nickels ; that Rowe was very drunk, so much so, that he was taken into the vehicle with Evans and defendant, and the horse in his conveyance was tied to the rear end of theirs ; that one of the traces in Evans’ wagon became unhitched and he got out to adjust it, when Rowe being aroused, asserted that his money had been stolen and that Evans had taken it, and getting out of the wagon, the altercation ensued in which he was killed by Evans. The latter [284] in testifying to the occurrence said — after stating that Rowe accused him of taking his money and he denied it — that “Rowe got out from back of hack. Rowe said it was a damn lie, that I had his money, and he would get it or kill me or I kill him. I heard his knife click as he came at me. It was all over in a minute and a half. He grabbed at my collar with left hand and cut me with the right. When he came at me the last time, he was trying to make a lick at me, when I cut him several times, when he fell. During the difficulty, defendant never got out of hack. He never got out of hack till we were across the creek (after the killing). He had nothing in the world to do with it, never saw money of Rowh after we left him at East Gadsden when Rowe was showing it to Smith. * * When Rowe got out of the wagon, he was a drunk man. McLeroy was a drunk man and not able to take care of himself.” It was otherwise shown that defendant was drunk. The evidence on which the State relies to show defendant’s complicity in the killing is substantially that James Rowe, for the State, testified that the defendant, on Monday'morning after the killing on Saturday night, told him that Rowe had money. At one time he said it was about $15, again that it was about $20, and at another. time that it was $25 or $30 ; and that one J. C. Cohenur, testifying for the State, stated that defendant came to his house about 4 :30 o’clock on Sunday morning, was riding a bay horse and leading a mule ; that witness was out feeding his stock when defendant seeing him, rode up, and proposed a trade, and witness told him he would trade with him, if it was not Sunday. Defendant said, he would like to trade, as he had been in a difficulty and needed some money, and that he had been up all night; that he saw reddish spots on his coat, vest and shirt, which he took to be vomit, but recalling it to mind, in his best judgment it was blood ; that he took breakfast, but appeared to be drunk and ate but little; that witness asked him to ’wash his hands, but he declined, stating he had washed them ; that witness traded with him for the mule and promised to give him ten dollars on Monday, but did not pay him on that day, as [285] the man who brought the order was not defendant and the order was not in defendant’s handwriting, with which he was acquainted. The defendant testified that he was drunk oh the occasion, was asleep when Evans aroused him, and asked him to hold the lines till he fixed the trace; that the clothes, which were exhibited to the jury, were the ones he wore that night, and were in the same condition they were that night, and there were no signs of blood on them ; that he could not write his name nor could he read ; that he got out of hack after they crossed the creek and rode his horse and led one ; could hardly keep on his horse, and the one he was leading got loose at a time when he must have been asleep ; that he turned back to look for it, and in that way he became separated from Evans ; that he did not tell Cohenur he had trouble and needed some money, nor did he tell him he had washed his hands ; that he heard Rowe accuse Evans of having his money and heard Evans deny it, and they came together, but that he did not and could not see any licks struck. He also testified that Rowe was a particular friend of his; and the evidence showed, that Rowe’s cousin married defendant’s daughter. 4. The well settled rule in reference to conspirators is, that “When two or more persons combine or conspire to do an unlawful act, or to commit a criminal offense, each is equally responsible for the act of the others in furtherance of the common purpose, if he is present at the time, aiding, encouraging, or ready to assist if necessary, and if the act done is within the scope of their common purpose, or is the natural and proximate consequence of the act intended; but they are not responsible for an act prompted by the individual malice of the perpetrator, and it is a question for the jury whether the act done was within the scope of the common purpose, or grew out of the individual malice of the perpetrator.”—Pierson v. The State, 99 Ala. 148; Williams v. The State, 81 Ala. 1; Evans v. The State, 109 Ala. 11. It is also the well settled doctrine of this court, that when the act charged is one committed with a particular or specific intent, which is the essence of the crime, drunkenness, as affecting the mental state and condition of the accused, is a proper subject for the consideration [286] of the jury in deciding the question of intent.— White v. The State, 103 Ala. 72; Chatham v. The State, 92 Ala. 47; Engelhardt v. The State, 88 Ala. 100. 5. From the foregoing it will appear that charges requested by defendant, numbered 2, 4, 5, 11, 13, 15, and 16, each ignored any reference to the alleged conspiracy formed between Evans and defendant, upon which the State relied for his conviction, and were on that account properly refused. The 7th was confused, not clear, and was calculated to mislead. The 10th was bad. It is not disputed who killed Rowe — Evans did it; and yet the charge postulates that if he did, defendant could not have been guilty. He may have been guilty also. It was for the jury to determine under all the facts. The 12th and 19th are faulty, ,if for no other reason, in not setting forth the ingredients of self-defense — Roden v. The State, 97 Ala. 54; Miller v. The State, 107 Ala. 42. The 18th finds duplication in given charges C and D, and was unnecessary to be repeated. The 20th, in calling attention to and emphasizing a particular part of the evidence, has been too often-condemned, to require comment. Refused charges 6, 17 and 21 appear to be free from fault and should have been given ; and for the error in refusing to give them, the judgment must be reversed and the cause i’emanded. Reversed and remanded.