Dixon v. State
139 Ala. 104
Ala.
1903
Check Treatment
McCLELLAN, C. J. —

The evidence adduced by the State went to show that Kirk Dixon shot and killed Jim Gordon, as charged in the indictment, on the premises of the latter about nine or ten o’clock on the third Sunday night in August. Defendant as a witness denied all connection witli the homicide, and testified that throughout that night, for a day before and several days after he was sick at the house of one S. Moore, which was six miles from the scene of the homicide. There was other evidence that he went to Moore’s the day before, and, complaining of being sick, sent on Sunday for Dr. Bras-field to minister to him. Dr. Brasfield’s testimony was as follows: “That he went to see defendant on that Sunday afternoon and found him sick in bed at S. Moore’s house; that defendant had about 103% degrees of fever; that he felt his pulse but did not take his temperature with a thermometer; that he ivas suffering with malaria with bilious complications; that he got to his patient about half past four o’clock Sunday afternoon and stayed with him about twenty or twenty-five minutes; that he gave him a dose of calomel and left five more doses to be taken at hour intervals till the five were taken; that, he is a regular practicing physician; that he knew Jim Gordon and knew where he lived; that Jim’s Louse was six miles from S. Moore’s house where the de*106fendant was when he went to see him; that he went back to S. Moore’s house at 8 o’clock the next morning, and saw the defendant, and that' the defendant was still in bed, and that he had no fever, and that his pulse and temperature were then normal.” After the witness had thus testified, the defendant propounded the following-question to him: “Doctor, you say you saw your patient Sunday afternoon about 4:30 o’clock and that he then had 103% degrees of fever and was suffering from malaria, and that' you saw him again next morning at 8 o’clock and found his pulse and temperature normal, could this patient in the condition in which you found him Sunday afternoon have gotten up and walked six miles and killed a man and returned and have been in the normal condition in which you found him at 8 o’clock Monday morning?” To this question the court sustained an objection, and then defendant asked this: “In vonr opinion is it probable that the defendant in the condition in which you found him Sunday afternoon and Monday morning could have walked six miles and killed Jim Gordon Sunday night somewhere about 9 or 10 o’clock and have returned and been in the condition he was when you visited him Monday morning?” The court also sustained an objection to this question. We understand both of the questions to call for the professional opinion of the witness whether a person suffering from malaria with bilious complications, and a high fever late in the afternoon could walk twelve miles and go through the ordeal of killing a man over night and he free from fever and of normal pulse early the next morning. This is, of course, a matter for expert opinion. Neither the jury nor the court could know what effect the physical exertion of walking so great a distance and the mental excitement incident to doing murder would have upon a man in defendant’s condition. A physician would know whether such conduct on the part of the defendant would likely aggravate his fever overnight. Assuming an opinion that it would, the fact that the defendant had no fever the next morning, taken in connection with the opinion, would be a pertinent circumstance tending to *107sliow that the defendant had not gone to Jim Gordon’s house and killed him. It is the same legal question as if it had been shown that the defendant was desperately ill on the eve of the homicide, in the last stages of consumption for instance, and his physician’s opinion had been that he could not have gone to Gordon’s, killed, him, returned, and himself survived the night, and that he was alive the next day; or, for further illustration, the question stands upon the same legal footing as if it had been shown that the defendant was critically ill and in a very weak and helpless state, and the physician’s opinion as to whether he could have walked to and from Gordon’s house at all; and it seems clear to us that such expert opinion in either of the cases stated would have been competent. Our conclusion is that the circuit court erred in sustaining objections to these questions calling for the expert opinion of the witness Brasfield, to the effect that the defendant’s condition on Sunday afternoon was such that he could not have walked to Gordon’s that night and killed him and returned to S. Moore’s and been in the physical condition lie was found to be in at 8 o’clock the next morning.

There is no merit in. any of the exceptions to other rulings of the trial court.

Beversed and remanded.