*1 19 So.2d
BLUE v. STATE. Div. 211.
Supreme of Alabama. Court
June
Rehearing July 25, Denied *2 Bessemer, Ross, Bed- Ross, &Ross G.
dow, Jones, Birmingham, and Ray & Fairfield, appellant. Benton, for P. McQueen, Atty. Acting Gen., Wm. N. Hawkins, Harris Geo. O. C. and John Attys. Gen.,
Asst. for the State. *3 STAKELY, Justice.
Appellant was tried under an indictment charging degree. murder in the first He. was of murder in convicted the second de- gree imprison- fixed punishment his penitentiary fifty in for a term ment years. appeal from judgment is This of conviction and rendered the sentence thereon. trial, the court was course upon It rulings. called numerous make by is error is claimed that there many rulings. of these Based on these in appellant may rulings, the contentions of (1) The summarized as follows: jury drawing impaneling method illegal, providing since statutes for un- procedure which followed (2) constitutional and void. The defend- general ant was affirmative entitled charge. (3) The did not re- impartial trial, fair and since ceive a atmosphere trial was in prejudice had in (4) and bias. The court was in error rulings various on the evidence. The record in shows draw impaneling jury, procedure ing and procedure pro which followed is County exclusively by for vided Jefferson seq., Title Code of 1940.- It et §§ is claimed statutes are uncon void, being stitutional and as violative 110 of the State Constitution §§ 14th infringing Amendment It Constitution of United-States. procedure is further claimed which provided followed have been seq., 30 et Title Code of §§ questions present aptly were constitutional ed, example by quash as for motion to by venire, which was overruled the trial questions, All of these constitutional court. recently by considered this court of Burns v. the case So.2d 450.1 court, decision, authority of that On the upholding in error the method was not impaneling jury. drawing and Fur- 1 Post, p.
nue
be refused.
Howard
deceased,
there
West and ran
above.
the elements
following:
smallest
Willis v.
the
to examine the
the scintilla
the
uphold
be substantial evidence
‘glimmer,’
question
to
Cas.
mere scintilla of evidence is
cence,
then the court
sistent
sort
ties,
Grimmett,
So.
issues
give
overruling
apply
reference to
sion of
ther discussion of this
of the
the evidence
ent case is
far as
Tendencies
“These
See also
“After an examination of the authori- wide.
mind some fundamental
support a conviction.
justify
the
case,
62;
requirements
contrary,
and 21st
that has invoked
we
living
was not sufficient
to
[*****]
So.
northeast
in a criminal case to the
with
to
it was
charge.”
But
It
a criminal
face
453;
this or
Id., 240 Ala.
criminal
have
Blue,
here
evidence of
trace,’
general affirmative
then
tending
lived
require
is insisted
‘spark,’
utterances
228 Ala.
establish
unnecessary.
Inge
room was across
It therefore becomes
the
it is
this
and on the court’s
The
rule,
Id., 255
Hargrove
submission
been
the
of the
presented,
predicated
back
—‘a
“there must
motion for
Street.
thought
any
evidence to
the
corner of
charge.
prosecutions.
the evidence showed the
to
affirmative
equally
the
Bessemer
prosecution.
‘the
defendant,
unable
Am.St.Rep. 60,
Ala.App. 365,
East
his
other
scintilla’ —is
1, 2,
prove all the
the material
presumption
the ‘scintilla rule’ to
court
charge.” Ex
error
tending
feature
evidence in
that a mere
least
wife,
81 spring year 268, applicable during and deceased 61, 267, peculiarly 75 So. accompanied by cursing shooting, here. Viz: “ by the sound shoot defendant and fair trial ‘A to a entitled competent ing. The as tend evidence and the evi- by jury according the law to State, ing to show malice. Smith v. 197 dence, free from and such trial should be 193, 316; State, Ala. 72 Webb v. 26 So. improper prejudice any appeal to or other 241, ; Ala.App. 262 157 So. 26 Am.Jur. appear that the learned motive. It would p. 371. trial judge before whom this upright power did all in his was conducted Photographs of Place of Homicide. improper wrong occasioned Pictures scene of the solicitor; homi it can- untimely remarks of the were cide admissible. State, Swindle v. 27 however, not, but that seriously be doubted 549, 372, Ala.App. 176 So. certiorari denied injected been would poison that had * * * 621, 375; State, 234 Ala. 176 So. Wilson v. eradicate; difficult 21, Ala.App. 563, 31 11 So.2d certiorari de in error in over- the court was therefore ” 671, 243 11 nied So.2d 568. a new trial.’ defendant’s motion for ruling 248, State, Ala.App. 4 So.2d Emerson Addiction to Drugs and Intoxicants. 183, 185. There was tending which we have In view the conclusion show the deceased had been many for reached, trial for a new the motion years addicted drugs to the use of and in 7, Title Code granted. have been § toxicants when she could drugs, not obtain thereof, and as a result of the use became Upon and as a further consideration tending abnormal. There was evidence proceedings in the lower guide to further show that she was in such condition around court, of other proceed a discussion we six o’clock evening on the of the shooting. case. questions trial raised expert evidence tending to Threats. show that such a condition sometimes re suicide, sulted in feeling sometimes in a the defendant to Alleged threats of physical beyond actually far power years prior wife, though several his made possessed, general degen and sometimes in killing, alleged time eracy. tending There was evidence malice on competent, tending part show suicidal on the inclinations wife. part toward his of the defendant deceased, an effort her including Holmes, 157 Mass. Commonwealth v. part pact to make a suicidal with 270; 6, Am.St.Rep. Shelton v. 32 N.E. tending There husband. was evidence 8; Rector v. 217 Ala. part show threats on the of the deceased 857; Ala.App. Walker So. toward the defendant and also evidence Am.St.Rep. State, 85 Ala. time of the shoot to show at the 839; 17; 88 Ala. So. Pulliam v. woman, deceased, frail made advances 30 C.J. gun toward the defendant the evidence introduced State in effect she intended to stated kill Ball, of deceased Alf deceased father defendant and herself. both given he had wife of the sought The defendant to show ain num- lifetime, preliminary hear his isolated ber of instances the conduct and threat made ing. This showed a actions deceased while under daughter against both father and *9 drugs influence of or In intoxicants. some- trial, the court ad this defendant. On the of these instances court allowed the evidence, limited the threat but mitted the testify that witness to deceased was of the de only against deceased wife as abnormal, but to allow the refused witness error. Shikles v. This was not fendant. episode. to show the details of the In one 412,1 certiorari State, Ala.App., 18 So.2d instances, 417;2 the court of refused to ontgom denied, Ala.Sup., 18 So.2d M testify the defendant allow to to ab- 902; 7, 24, State, 49 ery 160 Ala. So. v. normality of the deceased when he was 30 191. C.J. 1942, January, train in taking her on a Quarrels. Prior sanitarium in North for. to a Carolina instance, the court testimony In this ex- tending treatment. to only details, quarreling proof not of but also between the cluded defendant 2 Ala.App. 245 Ala. 1 31 423. 641.
82
opiates,
of
to kill both
theory
sought
influence
condition.
general
of the
proof
herself,
having
threatened
to
or
as
evidence
refusing
court
in
of
defendant,
certainly
kill
sought
to
in-
that
was
instances
in the isolated
details
him.
think
conduct
We
that her acts and
drugs and
of
use
in the
temperate habits
occasions,
on other
the in-
when under
allow
fact and to
is
collective
a
intoxicants
intoxicants,
drugs
fluence of
would
multi-
unnecessarily
details would
proof of
light
tend
further,
shed
acts and conduct
as
on
case, and
issues in the
ply the
on the
night
shooting.
of
If on these
instance, that the incident
foregoing
unruly
other occasions
was
violent
she
light
time to
remote in
throw
too
was
manage
control,
hard to
or showed
It
'case.
was error to
issues
characteristics,
suicidal
then we think
testify
allow
refuse to
such
resulting
characteristics
from or mani-
indicated
As
as
above.
fact
collective'
abnormality,
festing at other
times her
see,
in time between
the difference
we shall
would
light
tend to shed
on the issues
and the
in
time of
particular instance
this case. We are
only
dealing
necessarily
not
with
render the
shooting, does
proof
intemperate
of
habits, but
with
also
inadmissible.
the result or
intemperate
manifestation of
question
that a serious
think
further
We
dealing
habits.
areWe
with a case where
particular
case
presented in this
is
proof
is
abnormality.
to show
denying proof
in
ruling
court
We think that our cases dealing with in-
isolated instances.
of these
the details
of
sanity provide a rule which is somewhat
Co.
Natural Gas
the case of Southern
In
analogous
problem
to the
we are
with which
171,
63,
Davidson,
142
this
225 Ala.
So.
v.
in
dealing
pertinent.
far as it is
so
here
proof
court,
dealing with methods of
“It
is true that
intoxication,
the case of Howard
said:
of
402,
v.
255, 257,
172 Ala.
55 So.
34
theory was that Ed Green
“Plaintiff’s
L.R.A.,N.S., 990, this court held:
‘In in
intoxicating
the influence
under
quiries
sanity
as to
or insanity,
it has
admittedly material
liquor at
the time' —
been held
“every
party’s
act
may testify that
A witness
evidence.
life is relevant
1
issue.”
Greenl.
of another
appearance
conduct
(16th Ed.) p.
on Ev.
58. So statements
State, 167
(May v.
was intoxicated
that he
homicide,
made after the
602;
v.
Stoudemire
36(8),
So.
Ala.
52
competent
are
mind.
to show the
of his
condition
So. 498;
495,
Burke
Davis,
208 Ala.
39,
28,
Braham v.
143 Ala.
599), but
Tidwell,
211 Ala.
v.
And,
acts,
8$
n cused at
720;
act,
1130;
C.J.S., Homicide,
217, p.
though
the instant of the
40
§
Ed.,
I,
144, p..
tend
Wigmore,
facts are adduced must
3rd
whatever
Vol.
581.
§
”
show the mental state at that moment.’
regard.
in this
no error
122,
514,
Coffey
14
v.
244
So.2d
Ala.
points argued
We find no merit in other
127.
indi-
appellant,
the errors
but for
The lower
error
in this
court was in
above,
the lower
judgment
cated
regard.
re-
court
the cause is
reversed and
manded.
Rebuttal Evidence.
Reversed and remanded.
The defendant
introduced in
had
All
concur.
the Justices
evidence acts and declarations of the de
period
ceased over
time
considerable
Rehearing.
On
tending
show her
of life and
weariness
extended; applica-
Opinion modified and
By proof
readiness to end it.
overruled.
rehearing
tion for
evincing
unhappy
acts and declarations
an
mind,
All
concur.
state
opened
defendant
Justices
door
the State
acts and declara
show
tions
to evince
different state
mind,
is,
a state of mind consistent
desire to live. These
with the
acts and
admissible,
declarations
deceased were
not as evidence of
the truth
what was
Nordan there are Where circumstances person, suggest charged that a murdered, suicide, it
have been committed competent prosecution, for the for the theory suicide, repelling purpose of in good deceased happy and in spirits and this connection the friendly could show the con prosecution' and conversation of the deceased. duct 86 Tex.Cr.R. 215 S.W. Porter v. Baldwin, 201; 36 Kan. P. State v. Selby, 318; P. People v. Cal. Lentz, 426; Minn. 47 N.W. State