The appellant, Columbus Boggs, alias Richard English, was convicted of murder in the first degree and sentenced to death by electrocution. His appeal to this court is under the provisions of the automatic appeal statute. Act No. 249, approved June 24, 1943, p. 217; Code 1940, Tit. 15, § 382 (1), et seq., 1955 Cum.Pocket Part.
The indictment charges that appellant "unlawfully and with malice aforethought killed M. L. Chance, by shooting him with
The evidence clearly shows that appellant shot the deceased with a pistol, thereby causing his death. Voluntary admissions made by the defendant in the presence of his mother, a police officer of the City of Selma and a state investigator were part of the evidence offered by the state. These admissions were not contradicted by the defendant. In fact, the defendant did not take the stand, which was his right, and presented no witnesses in his behalf.
Inasmuch as we have concluded that error was committed in the trial of the case calling for a reversal, it would serve no useful purpose to discuss the evidence in detail.
Mr. Artie Stillwell, of Anniston, Alabama, was called as a witness for the state. His examination consisted of the following:
In Brasher v. State, 249 Ala. 96, 98, 30 So.2d 31, 33, we had occasion to discuss the admissibility of evidence of this character and there said:
And, of course, the question of identity must be an issue in the case for such proof to be admissible. Johnson v. State, 242 Ala. 278, 281, 5 So.2d 632.
There are other exceptions to the general rule, including the following: "[W]hen the fact of the former crime may reasonably tend to show a motive for the crime upon which the party is being tried", Vincent v. State, 231 Ala. 657, 660, 165 So. 844, 846; "cases where such evidence may throw light on the motive, intent, scienter, or identity, and so tend to establish the guilt of the party of the offense for which he is being tried", Jackson v. State, 229 Ala. 48, 50, 155 So. 581, 582; Robinson v. State, 243 Ala. 684, 688, 11 So.2d 732; "the rule will not avail to exclude evidence of the res gestae, nor to close the door against proof of motive for the crime under investigation", Davis v. State, 213 Ala. 541, 543, 105 So. 677, 678.
The position taken by the state is that "the prosecution may show the circumstances under which the defendant acquired the weapon, first to carry out a prearranged plan to rob Mr. Chance, and then, in killing Mr. Chance." Cited in support of this is Rollings v. State, 160 Ala. 82, 49 So. 329, 332, where it is said that "it might be very important to know how and when the defendant obtained the pistol with which he shot deceased." But the situation in the case now before us is quite different from that in the Rollings case. There "the sole dispute was whether or not defendant acted in self defense." Evidence as to how and when he obtained the pistol was there held admissible as having some bearing on that issue. Here, there is no issue as to self defense. Nor do we perceive any issue to which it can be fairly said that Mr. Stillwell's testimony was relevant. Cf. Johnson v. State, 265 Ala. 360, 364, 91 So.2d 476.
After Mr. Stillwell testified, there was evidence that the pistol referred to in his testimony was found in defendant's pocket when arrested. The state toxicologist also testified that, from tests made by him, it was his opinion that the shot which killed Mr. Chance was fired from that pistol. Also, the defendant, in his voluntary statement already adverted to, admitted shooting Mr. Chance with the pistol. None of this testimony had been introduced by the state when Mr. Stillwell testified. It is argued that such evidence served to "connect up" Mr. Stillwell's testimony rendering its admission innocuous and making it unnecessary for further ruling by the court. We are unable to agree. The proper test as to "connecting up" is whether Mr. Stillwell's testimony would have been admissible after introduction of the foregoing evidence. So considered, we see no purpose of his testimony, except, as argued by appellant, that it was to leave the impression with the jury that defendant had probably stolen the pistol.
It is also insisted by the state that even if there was error in admitting such testimony it was error without injury, and under Rule 45 of the Revised Rules of Practice in the Supreme Court, 261 Ala. XIX, XXXVII, Code 1940, Tit. 7, Appendix, 1955 Cum.Pocket Part, a reversal is not required. Revised Rule 45 provides, in pertinent part, as follows:
We have examined the entire record and are not satisfied that the admission of such evidence was without injury to substantial rights of appellant. He was charged with and found guilty of murder in the first degree; and we think the evidence clearly supports such finding. But, in so finding, it was within the sole discretion of the jury to prescribe as punishment either the death penalty or imprisonment in the penitentiary for life. Code 1940, Tit. 14, § 318. We cannot possibly probe into the mental processes of the jurors to ascertain whether and to what extent the incompetent testimony actually had in influencing the exercise of their discretion in fixing the punishment. We are not willing to say it did not have some influence on
It should be borne in mind that this is a case brought here under the automatic appeal statute, supra, which contains a provision that this court "may consider, at its discretion, any testimony that was seriously prejudicial to the rights of the appellant, and may reverse thereon even though no lawful objection or exception was made thereto." Section 10, Act. No. 249, supra; § 382(10), Tit. 15, supra.
A reversal of the judgment and remandment of the cause to the circuit court for a new trial is called for.
Reversed and remanded.
All the Justices concur.