Brooks v. State , 32 Ala. App. 389 ( 1946 )

In their brief in support of their application for rehearing the able and conscientious counsel for appellant argue that we erred in stating in our opinion that Solon Brooks testified that his father had told him at the hospital that "he would not get well" and other statements to that effect, and that we were also in error in stating that Mrs. Ruby Hill had testified that her father had told her at the hospital that he was going to die.

Pertaining to the testimony of Solon Brooks concerning the statements made by his father the record is as follows:

"Q. Down here at the hospital, after you brought him to town, did you have a conversation with him about his condition, about whether he would live or die? A. He said he wouldn't get well.

"Q. I say, did you have a conversation with him? A. Yes, sir.

"Q. When was that — more than one time? A. Half a dozen times, I guess.

"Q. Do you recall when the first time was? A. He told me Monday after I brought him to town, after I got him to the hospital.

"Q. I'll ask you in that conversation, if your father told you he couldn't get well, he was going to die? A. What was the question?

"Q. Did your father tell you anything about whether he would get well?

"Mr. Hutson: We object to him leading the witness.

"The Court: Sustain the objection.

"Q. I'll ask you, Mr. Brooks, did you have a conversation with your father over at the hospital after he was shot? A. Yes, sir.

"Q. In which he discussed with you the question of whether or not he would live or not? A. Yes, sir.

"Q. What did he say with reference to that. A. He just said she had got him.

"Q. What did he say with reference to whether or not he was going to die or get well?

"Mr. Hutson: We object to him leading the witness.

"Q. Tell what he said then? A. He said he wouldn't get well.

"Q. What else did he tell you about how he got hurt?

"Mr. Lynne: We object, because no sufficient predicate has been laid, and because the preliminary proof is too slight and indefinite to authorize an admission of a declaration of this type; it does not show it was made under the sense of impending death; does not show he had no hope of recovery; does not show it was made in the shadow of impending death; does not show a settled, hopeless expectation that his death was near at hand; does not show that he was then conscious of a swift and certain doom; does not show he was then under the impression of almost immediate dissolution.

"The Court: When was it he made that statement, Mr. Brooks? A. After he got to the hospital the first time; that was Monday about nine or ten o'clock, after I got him up there.

"The Court: Was that the 4th of September? A. Yes, sir.

"The Court: Then did he make that statement any other time while there? A. Yes, sir.

"The Court: When was the other time or times? A. He told me three or four times that week; then he told me Sunday before he died Sunday night.

"The Court: On the day you got him to the hospital, or the day that he got to the hospital, what did you say he said with reference to his recovery or not? A. He said he wouldn't get well.

"The Court: Are those the words he used? State what words he said. A. He asked the doctor, and the doctor said, 'Oh, Maybe you'll make it,' and he says, 'I don't think I will, do you, Solon?' He says, 'I don't think I'll ever get well.' That was just not long after I got him there, he was talking.

"The Court: He said, 'I don't think I'll ever get well?' A. Yes, sir, 'Don't believe I'll get well.'

"The Court: That's all he said then? A. Yes, sir.

"The Court: Gentlemen, I think there is a difference between '* * * don't think he is going to get well,' and 'Think he is going to die.' I sustain the objection for the present.

"Q. (Mr. Almon) Mr. Brooks, did you tell the Court just now when he asked you something, that your father said, 'I don't believe I'll get well?' A. That he wasn't aiming to get well.

"Q. Wasn't aiming to get well? A. Yes, sir.

"Q. Mr. Brooks, did you have any conversation with your father — that was the first conversation you had with him over at the hospital — is that right? A. Yes, sir.

"Q. Did you ever have any conversation with your father after that about his condition, whether or not he would live or whether he would die, his opinion about it? A. Yes, sir.

"Q. I believe you said you talked with him about his condition just an hour or two before he died? A. Yes, sir.

"Q. What did he say to you in that conversation about whether he was going to live or die? A. He said he was aiming to die.

"Q. You mean by that your father told you he was going to die? A. Yes, sir, said he wasn't aiming to get well.

"Q. Wasn't aiming to get well? A. Yes, sir.

"Q. What did your father tell you in that conversation an hour or two before he died about the defendant over here, and about the wounds in his shoulder?

"Mr. Lynne: We object, on the same grounds set out while ago.

"The Court: At the time he talked to you that time was Dr. Irwin there, or had he been there that night? A. That was just before the doctor came down.

"The Court: That was before he came? A. Yes, sir.

"The Court: Overrule the objection.

"Mr. Lynne: We except."

From reading the above portion of the record it is clear to each member of the court that the objection sustained by the court was to the question: "What else did he tell you about how he got hurt?" This question clearly pertained to the dying declaration itself, and not to the questions establishing the predicate for the admission of such declaration. It is clear to us that statement in the opinion about which counsel complains as to Solon Brooks' testimony is a fair and accurate reflection of the record. It is noted there were no objections even interposed to such statements of Solon Brooks which we quoted, nor was any motion made to exclude these statements.

Likewise the objection sustained by the court to the question propounded by the State to Ruby Hill was to the question: "What did he tell you after he told you that, about how he got wounded?"

This question was propounded after the witness had testified without objection that over at the hospital her father had told her he was going to die, and without any motion having been made to exclude such testimony.

Appellant argues that the court erred in sustaining the State's objection to the question: "Then you raised up about it and told your father what you were going to do to her, didn't you?" The record shows that the witness answered "No, Sir" to this question, and that thereafter objection was interposed and sustained. However no motion to exclude the answer was made. The objection coming too late, and no motion to exclude the answer having been made, there is nothing to review.

In our opinion the trial court did not err in sustaining the State's objection to the following question: "And prior to this difficulty you shot at her and your father both, didn't you?" which was asked after the witness Solon Brooks had testified that he did not "feel so good (towards appellant) right now, but I never had a cross word with her." There had been no testimony concerning witness' feelings towards his father, and the question involved specific acts to show bias of this witness toward both appellant and his father. The court could not be said to have erred in sustaining the objection had the question concerned the father only. An answer to the question as propounded would have necessarily included acts showing bias against the father as well as appellant. When both competent and incompetent testimony is called for by a single question, a court is not bound to separate the admissible from the inadmissible, and will not be put in error for sustaining an objection to a question containing such dual characteristics. Consford v. State, 15 Ala. App. 627, 74 So. 740, certiorari denied200 Ala. 23, 75 So. 335; Harris v. State, 17 Ala. App. 13,81 So. 349.

Likewise it is our opinion that the court below correctly sustained the objection interposed by the State to the following question propounded to the witness Solon Brooks: "And isn't it your purpose to get rid of her" (appellant) "so that you will get that place — isn't that your purpose in this case?" The question assumes, in complete absence of any evidence to that effect, that Solon Brooks would get his father's place if appellant were got rid of. Questions assuming the truth of facts unproved by evidence are properly excluded. Butler v. State, 16 Ala. App. 234, 77 So. 72; Edmonds v. State,16 Ala. App. 157, 75 So. 873; Haithcock v. State, 23 Ala. App. 460,126 So. 890; Cox v. State, 25 Ala. App. 38, 140 So. 617.

Application for rehearing overruled.