Byrd v. State , 209 Ala. 65 ( 1923 )

The state no doubt had the right to prove a fuss or altercation, previous to the homicide, between the defendant's sister Mary Byrd and the aunt of Peter Jenkins, alias "Beechum," a claimed conspirator with the defendant, and "Susie Mantione," the deceased, inasmuch as the fact had been communicated to the defendant and said "Beechum," as a circumstance of ill will tending to establish a motive and to also prove the response of said "Beechum" which the jury might consider as a threat. But the trial court erred in permitting Bertha Weaver to detail all that was said and done between Mary Byrd and the deceased during the fuss or quarrel. These particulars would not have been admissible had the defendant, instead of her sister, been a party to the fuss. Lawrence v. State, 84 Ala. 424, 5 So. 33; Jones v. State, 116 Ala. 468,23 So. 135. These facts and details were calculated to be of great prejudice to the defendant as well as her sister who was a witness in the case. The jurors were presumably white men, the deceased was a white woman, while the defendant and her sister are negroes and a repetition of the epithets applied to the deceased by said Mary Byrd was calculated to arouse the passion and prejudice of the jury; and for the admission of this evidence alone, if no other error appeared, this case would be reversed.

This record presents a harvest of objections and exceptions throughout the trial, many of which were without merit, and it would not only be irksome to do so but a discussion of same can serve no good purpose. It is sufficient to say that the effort of the state to corroborate or bolster the testimony of Bertha Weaver by showing that she repeated the confession of the defendant to others was improper, and, while the trial court subsequently excluded same, it was permitted to remain with the jury a considerable time, and was accentuated by the persistent insistence and argument of the deputy solicitor as to its admissibility.

As to the remarks of the deputy solicitor when presenting the axe to the witness, "I am not going to hit her with it, I think she ought to be hit with it," they were, of course, improper. This was realized by the solicitor, who promptly withdrew same and, in effect, apologized for making said remarks. We think, however, these remarks were more pardonable than a few other statements made during the progress of the trial, especially in view of the fact that it was in the nature of a retort to an admonition from defendant's counsel, "Don't hit her with it." While this record discloses considerable zeal and aggressiveness on the part of the deputy solicitor in the prosecution of this cause, it is inconceivable that his manner was so bloodthirsty and belligerent as to have impressed counsel for the defendant that he was in the act of committing the identical deed for which he was then prosecuting the defendant, and the admonition of counsel for the defendant was unjustified and provoked the retort in question. A party cannot complain of the remarks of counsel which were provoked by the improper remarks of his own counsel. Tea Co. v. Saxon Co., 207 Ala. 33,91 So. 885; Hanners v. State, 147 Ala. 27, 41 So. 973.

It was improper for the deputy solicitor to have stated and repeated:

"I am going to prove that Bob Taylor has offered to bribe this old negro out here, Houser."

Another witness, Henry Wilson, was on the stand at the time and gave no evidence tending to show that Bob Taylor had offered to bribe Houser, nor was this fact proven by any witness. Houser had denied the fact when on the stand and the nearest approach to proving same was by a previous statement made by Houser out of court which was used to impeach him and which did not and could not prove the offer to bribe. Moreover, if the deputy solicitor expected to prove this fact, he could and should have done so without making the remark at an improper time.

The state, of course, had the right to cross-examine the defendant's witnesses as to whether or not they had been influenced to change their evidence or had been tampered with in testing the credibility of their evidence and to show that the defendant through her friend or agent Bob Taylor had been attempting to change or suppress evidence. Whatley v. State,96 So. 605;¹ Liles v. State, 30 Ala. 24, 68 Am. Dec. 108; Levison v. State, 54 Ala. 519; Jones on Evidence, §§ 17, 287.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

SAYRE, GARDNER, and MILLER, JJ., concur.

¹ Ante, p. 5.