Richardson v. State , 204 Ala. 124 ( 1920 )

On November 11, 1918, the appellant shot his son-in-law, John Baxter, who a few days later died from his wounds. Read most favorably to the accused, the evidence for defendant put forward this defense only: That Baxter approached a family party on an Anniston street and undertook to take his (Baxter's) four year old child from its mother or its grandmother (defendant's wife); Mrs. Baxter having left her husband, the deceased, about two months before the shooting and returned to the home of her father, this defendant; that Mrs. Baxter resented or resisted this effort of her husband, the deceased, to take the child; that thereupon Baxter struck Mrs. Baxter two or three times in the face; that defendant seeing this, remonstrated with Baxter; and that Baxter thereupon made a motion to his hip pocket, as if to draw a pistol, whereupon defendant shot him twice, once in the thigh, and once in the abdomen, the latter shot causing his death. The thus asserted defense was discredited by the jury. There was abundant evidence that, if credited, warranted that conclusion; the prosecution's contention being that Baxter innocently approached and stopped to see his four year old child, standing on the street in the crowd, and while in the act of fondling his child — whom Mrs. Baxter had two months before taken with her to the defendant's home, where Baxter had been denied the privilege of seeing the child — defendant shot Baxter at a time when Baxter was neither threatening nor menacing any one and was without weapon of any kind. The material issues were, of course, for the jury to decide. The trial was free from any semblance of error, unless, as the majority of the court hold in the opinion ante, the court erred in refusing, upon the state's objection, to permit the introduction in evidence by the defendant of the unsworn answer and cross-bill of Baxter to the original bill for divorce filed by Mrs. Baxter against him; it being signed alone by Baxter's (the deceased's) solicitors, his name not being affixed thereto in any way.

The ruling of the trial court, in excluding that pleading, was fully justified. That action of the trial court had been often approved here, and its correctness never doubted. The following decisions, pointedly invoked by the facts presented for review, so conclude: Stetson v. Goldsmith, 30 Ala. 602,607, Judge Stone writing; McRea v. Ins. Bank, 16 Ala. 755, 758,759, Dargan, C. J., writing; Durden v. Cleveland, 4 Ala. 225,227, Judge Goldthwaite writing; McLemore v. Nuckolls, 37 Ala. 662,672, A. J. Walker, C. J., writing; Cooley v. State,55 Ala. 162, 164; Callan v. McDaniel, 72 Ala. 96, 103, 104, Brickell, C. J., writing; Ex parte Payne Lumber Co., 85 So. 9,² decided a few days ago on the apt and controlling authority of Callan v. McDaniel, supra. In Cooley v. State, supra, Judge Stone said:

"Bills in equity, not verified by the complainant, are regarded as the suggestions of counsel, and are not evidence of any fact alleged in them, between the same, or other parties, in another suit."

That was the pronouncement in Callan v. McDaniel, supra. That this declaration in these among the other above cited decisions was not dicta is obvious. Aside from other considerations, reference to the personnel of this court at the times Callan v. McDaniel and its several predecessors were decided, as well as to the authorship of the opinions in those decisions, should be enough to demonstrate that something more than the statements of individual compilers, predicated of the deliverances of some courts in other jurisdictions, is necessary to destroy the authority of what our learned elders have, without qualification, so often aptly pronounced. To undertake at this late day to conform the law of decided cases in this state to what text-writers or other courts assert to be the rule elsewhere, is but to superimpose juristic chaos.

The trial court observed the rule of these decisions in this instance. These decisions should be accepted as authority or candidly overruled, in which latter event some reason should be stated for so abrupt a departure from what has been regarded for generations as a settled rule of law; and it might be suggested, by the way, that, if this old and long-observed rule is finally repudiated, attorneys will be subjected to a new, undeserved, and grave burden of responsibility for their acts and statements — a new visitation upon them of the law of principal and agent.

The decisions in Davidson v. Rothschild, 49 Ala. 104, and Ponder v. Cheeves, 104 Ala. 307, 16 So. 145, are without any application to the question under consideration. In the former the original pleading, before amendment of the complaint, in the same suit between the same parties, was received as evidence; this upon the stated theory that "what is admitted in the pleadings need not be proved" (italics supplied). The novelty of the application there made of the familiar rule quoted, viz. that, because an admission in pleading need not be proved, proof of it was admissible, may at some other time evoke judicial consideration. A number of the cases before cited were decided after the deliverance in Davidson v. Rothschild, supra, and no account was taken of it, any more than it took account of previous well-considered pronouncements, also above cited. The want of application of Ponder v. Cheeves, supra, to the question now presented, is correctly indicated by the statements in the facts recited and in headnote 1, following the opinion, that the pleading in the previous (second) action — Code, § 3858, and annotation — of ejectment, between the same parties for the same land, were receivable in evidence. The opinion appears to have entirely overlooked the point taken by counsel for appellant, as upon some of the authorities above cited, since no allusion or response whatsoever was made to appellant's brief on this point and no purpose to overrule previous adjudications was manifested. Whatever may be the value vel non of these two cases in other circumstances, they cannot apply here, for the reason that in the present prosecution the appellant was not a party to the Baxter divorce case, and the present prosecution for murder is in no legal sense related to that divorce case.

Another conclusive reason against the imputation of error to the trial court in this ruling is that the "answer cross-bill" is without any possible relevancy to the defense asserted in the evidence offered by the defendant. The majority view, affirming error, is that the answer cross-bill "would have enabled the jury, in determining the issues of self-defense, to view the acts of the deceased from the defendant's standpoint"; that it was serviceable on the issue as to "who was the aggressor"; that it "was admissible to show that deceased was contending for the custody of the child * * * by force under such circumstances as existed on the occasion of the homicide in question." This "answer cross-bill" is set out in the transcript. Quite naturally, there is not a word in it that bears the remotest connection with or reference to the subsequent shooting of Baxter by appellant. It expressed no threat. It positively denied the charge of cruelty made by Mrs. Baxter in her original bill. It charged Mrs. Baxter with acts of adultery during defined periods, while they lived together and since their separation, and with a man named therein. It charged that she beat their child unmercifully, that she was not a proper person to have custody of their child, and that he had not been permitted to see the child, either by his wife or the wife of the appellant. It was prayed therein that he be allowed to see the child, toward whom, it was averred, he entertained the "greatest affection," that he be given its custody and permitted to contribute to its wants, and that the bonds of matrimony be dissolved. Deceased had been impleaded by his wife. He thus answered, denying her charges, and sought affirmative relief on the grounds stated. What bearing could that pleading have upon the inquiry who was the aggressor, or upon the issue whether this defendant killed Baxter in self-defense? The fact of their separation and the pendency of this divorce case had been already proven. It was never in dispute. The appellant himself testified (Transcript, pages 54, 55):

"The state of my feelings towards John Baxter at that time, prior to the time that he made this assault on my daughter [i. e., the occasion when he shot Baxter], was all right. * * * I was not mad at John Baxter, up until I saw him strike Mrs. Baxter on Noble street; no hard feelings. My daughter had came home and told me all the trouble; but that didn't make me mad, and I never did get mad at him until I saw him strike my daughter that night."

Even the details of a former difficulty between deceased and appellant, at the time this "answer cross-bill" was filed, would not have been admissible; much less can it be soundly held that the details of a legal controversy, asserted in pleadings, between deceased and his wife, were admissible in this prosecution.

If it should be assumed, in the face of repeated decisions in immediate point, that Baxter's pleading was admissible for the limited purpose of showing the mere fact of the pendency, or his contest, of the divorce case (the majority opinion would admit it for all purposes, without limit), the trial court did not err in excluding it, for "where evidence, admissible for one or more purposes, * * * is offered without restriction or limitation to the purpose for which it is admissible, and the objection is general, the judgment will not be reversed, whether the court sustains or overrules the general objection." W. U. Tel. Co. v. Favish, 196 Ala. 4, 13, 71 So. 183, and authorities there cited.

This established rule was reaffirmed in the very recent decision of Archer v. Sibley, 201 Ala. 495, 78 So. 849, 850, where Farley v. Bay Shell Road, 125 Ala. 184, 27 So. 770, likewise in point, was cited. This record recites that "here the defendant offered Baxter's cross-bill for divorce, in words and figures as follows"; no indication as to the purpose for which it was offered being made.

In my opinion, this case was carefully and well tried, and the judgment rendered is free from error. I would therefore affirm it.

² 203 Ala. 668