*1
(cid:127)633
redeem,
Kelly
right
v.
limit the
creditor to
Carmichael,
overruled.
is
The statute does not
534,
Bad
redemption
a
Ala.
117 So.
judgment
of
creditors
al., ante,
48,
ham
lien,
p.
v.
et
grant
judgment
but'
is
“all
Johnston
420.
creditors of
debtor.”
Affirmed.
holding
v.
in Greenwood et al.
The
Co.,
&
Trigg, Dobbs
All
concur.
the Justices
227, enlarged
exceptions
embodied
statute,
supported
is unsound and
by Kelly Longshore, 78
v.
cited
support
holding,
supported
nor
of
statute.
Long
Kelly
of
facts in the case
“The
*
* *
that,
Long-
shore,
after
shore had
GRAMMER v. STATE.
Co.,
judgment
&
Kelly
Durr
recovered a
gage, he must show that he has
equity
pur
a sale and
redemption
process.
chase thereof
In short he
under
must stand in the
mortgagor.
shoes
Norton et al. v. British American Mort
Co.,
gage
113Ala.
that is a lien requisite a
63á *3 Lawson, Atty. Gen., Thos. S. and Geo. Bailes,_ Sol.,
Lewis Circuit and Robt. G. Tate, Sol., Deputy Circuit Bir- both of mingham, for the State. James, Frank M. Griffin W. Andrew appellant. Birmingham, for both normal; FOSTER, at appeared other times he nerv- Justice. ous normal, was not and at other times Appellant and convicted tried insane; absolutely that it form degree killing murder in one the first praecox “cyclic” of dementia knife, and Hammett him with cutting sanity type. His given penitentiary. a life sentence in the permanent, condition was but plea guilty His was not always”. “not When he is laboring under insanity. reason of spells one of those might our There was no reserved for distinguish be able guilty, plea consideration under times, that he is not at all wrong;_ all questions relate to that of least, does, accountable for good what fight August 3, occurred *4 or bad. September 3, Hammett died No- 1937. On Littlejohn, Dr. specialist a on mental 9, 1937, vember a was had hearing under diseases, who examined defendant in No- 4577, Code, sanity section de- as to the vember, 1937, at the instance of the court ap- fendant existing, having then the court to determine his time, mental status at that pointed a doctor into his mental to examine examined him only one cоunty time in the Upon hearing, condition. such the court jail. He testified symptoms to various Asylum. ordered him to the Insane State his Upon historic record. of a basis July On the court an order hypothetical question, he answered that de- superintendent since the the hos- fendant was probably August 3, insane pital had then in- certified that he 1937; that probably he pras- had dementia sane, he county jail be returned to the for cox. simple It paranoid, is, that trial, and he was tried and convicted on without or per- with delusiоns. This is a January form of insanity manent with remissions. The evidence of offered de- patient A under a remission probably would grand- tended to. that his be able to right determine wrong,, from insane, grandmother father-and were both probably not he was spell, if ain and not in though none of their children had become a remission. That he express, would not so, and defendant one of nine as to whether he was insane at afflicted, brothers sisters to be so killing; the time of the that it long takes a period diagnose of observation to veteran, dementia was a World War Defendant prajcox. discharged honorably and was Kay Dr. testified for the State. He is a had children. He married specialist diseases, in mental and is a staff hospitals on ac veterans’ various physician at Bryce Hospital. De- mental condition. count of his abnormal fendant was under his observation Novem- 22, 1933, adjudged he was On October 13, 1937, to July ber discharged. when he was in the Probate Court of Tuscaloosa insane brought He was before the County, and cоmmitted to United States entire medical staff on several occasions Hospital. His record showed Veterans’ conference; clinical it was facilities, various and that treatment at opinion of unanimous the entire staff in all using alcohol he was excessive- about that he insane, the conferences was not personality, change of ly, a distinct and had case, based on a review of the history of his prsecox, diagnosed simple type; ás dementia hospital, behavior and еxamina- diagnosed' it and at another time was as a tions and observations of Whereupon him. report paranoid type. The showed that Partlow, superintendent, Dr. directed hospital afterwards in the his only abnor- his return for trial this charge. under mality inability manifested was his to ab- physicians There were seven and the liquor, from using criminally stain clinical They director on the staff. thought insane when under its influence. insane, dangerous to-society but hospital was in and He out of the period after a long anti-sociаl and dan- several occasions. behavior; gerous that he knows Edwards, practitioner general a wrong, always Dr. but does not take into con- medicine, defendant, testified for price that he sideration the he has to pay for his family special- physician, conduct; was the anot drinking and when he was a diagnosed ist on mental disorders. society. He his menace to That he did not have prior condition which was the pnecox. person last dementia A with such “cyclic insanity.”
time he talked to him аs affliction would have a different picture of epitomized. practically some occasions he On symptoms, Dr.-Kay which But
637
af-
so
nor
he is
State
rests on
Parrish v.
tendency
a
when
State.
there
some,
page
improve
16(24),
be better
flicted to
36(9),
it
time when
Anderson
present
it is
all the
v.
times —but
171; Boyle
variations
exists. There are
evi-
symptoms are
tensity
denced;
would render
severe case
Charge
is the statement
his acts.
incompetent to control
one
supposed
what is
to be a scientific fact
more
in such
this.
or less value
a trial as
Appellant
errors.
assigns
4, which
But
as to'
jury
are
no direction to
argued
brief
gives
presumption
refused the
of such a
together.
are
effect
from such
They
are discussed
applied.
a finding as here
a mis-
charges, as
And has
follows:
leading tendency
might
the jury
whereby
charges
if
The court
“18.
presumption required
conclude that
such
you
the evi-
reasonably
are
satisfied from
guilty.
of not
finding
But
difficulty
prior
dence
the time of the
though
might
is that
per-
deceased, the de-
dеfendant and
manent
form of
such as
disease,
afflicted
fendant was
with mental
that at
responsible
times he was
legally
per-
mental disease was of a
that the
times,
his misconduct. At
he may not
type,
then the
disease
manent
mental
*5
have been. Under the statute
burden
the
presumed
rests
to continue and the burden
was on defendant to
that at
time
show
the
to prove
your
on the
reasonable
State
act,
incompetent
the
he
doing
was
not
that
the defendant was
satisfaction
himself, though
control
mаy
had
have
at the
from the mental disease
suffering
permanent
insanity,
form of
if in such
difficulty
time the defendant
the
with
condition there were
was
times when he
deceased.”
competent
wrong,
to know
from
charges
“19. The court
the
that
jury
if
control his actions.
you
satisfied
the evi-
reasonably
are
from
proof
there is
When
of such inter
defendant, prior
time
dence that the
to the
lucidity,
principle
per
the
vals
that a
difficulty
de-
of the
between defendant and
presumed
manent
form is
to continue
ceased,
insane,
insanity
that
State,
4,
(Odom
913)
174 Ala.
56
v.
So.
type,
permanent
of a
then there is
wa's
presumption
does not mean that
is a
there
insanity
the
presumption that
continued.”
against
idea that he may
have acted in
charges the jury
“23. The court
that if
State,
a lucid interval. Talbert
140 Ala.
v.
you
reasonably
are
satisfied from the evi-
96,
bill assignment. in this charge as set out ANDERSON, J., and C. THOMAS and Assignments and It is the BROWN, JJ., concur. general bad charactеr settled law witness adversary of an be shown to Rehearing. On him, impeach and it limited char to is not veracity. and Ala.Dig. acter for truth 799, Witnesses, 337(2). BROWN, Justice. defendant, carefully examined veteran, We have The a World War recitals exceptions connection, time, in this spent the bill of has much of his who since the War, asylums reached the they conclusion in and hospitals, and World on status, prejudicial do his not show error. mental account tried and Ordinarily, under similar facts and cir- degree in the convicted of murder cumstances attending for life. the commission of penitentiary sentenced to ' offense —the of insanity aside de- dispute that evidence is without The —the trial probably would have resulted City in the and his wife fendant in a verdict in the murder second de- him gave shopping; that she Birmingham gree. punishment The severity of pay to another store money bill, go flicted, is, opinion writer, of the a restaurant instead he went attributable to looseness with which contact, prear- without where came illegal trial was сonducted and mass of he had woman rangement, young with a and immaterial evidence brought into before, suggestion her and on seen never state, case of which some was re- of deceased home they taxicab, went objection ceived without defendant by the first time for the defendant where or his counsel. and a deceased’s wife deceased and met show, The state was allowed to over into Gilly; went deceased’s that all Miss timely objections, that de- invitation, except deceased all house ceased’s dead; wife was she died pint 'bottle whiskey out of drank since the rencounter companion between appellant and his whiskey which deceased, pneumonia. house. The deceased carried was clearly tendency immaterial and had a porch sat Gilly on the Miss went engender drink, sympathy for the deceased and swing, declining deceased prejudice excite against the defendant. Its kitchen. Soon remaining in the others thereafter, effeсt on the jury can not- be came of the estimated. out deceased’s wife Blevins v. to her porch stated house on to torn appellant had her dress husband witness, expert Kay, The state’s Dr. incident slapped her From this down. objections, without allowed give ensued, de- rencounter sudden opinion, examination, from his observa- deceased, which defendant defendant, and knowledge tion of the de- deceased, ab- Hammett, across the cut general, fendant’s but was al- inches domen, making incisiоn some six give lowed a second-hand rendition of length, his intestines causing or more in the conclusions members of the shirt. Hammett died into his to come out physicians Bryce board of Hospital peritonitis incident days later thirty to the effect that the defendant was sane. to the wound. quote: "It (cid:127)To was the unanimous *7 medical that Mr. the Grammer was to show goes staff weight the The insane, not at all conferences that dis- abnormal, mentally is that the defendant cussed it. That was based on our review that he was suf- much tеnded to and case, of the his history (cid:127)of the in behavior a disease of the mind. The fering from hospital our examinations the of him and goes to show that weight of the evidence observations of him the during our time w,as afflicted an irresistable defendant hospital. in The he was the staff notified liquors, and intoxicating when craving Partlow, or the gave Dr. him record. Dr. criminally insane. under its influence is the administrative head the Partlow plea on to the trial the The case went superintendent. hospital And when —the by and “not reason of not guilty, disposed, the case and we recom- it be conceded sanity,” and that while being return to the court as not his mended afforded an inference that the evidence wrote a insane, Dr. Partlow letter then in Hammett cutting act was information, upon to that based effect premeditated, it would be deliberate and insane and should he not re- that be say to correct such find- nearly that more for their the court further dis- turned to conjecture. on mere ing based physicians seven position. and There were on legal accountability, clinical director the staff confer- test of under The at present all reason Not all are times at plea guilty by ence. of not present ability, There six time of conferences. were mental at the the these is the conference; crime, there were seven to of the discriminate at the commission conference, present the last the ones respect to the right wrong decided, all of indictment, finally after oúr ob- charged in the that servations, with the offense wrong. he was not insane from Par that doing to refrain ability to return the court. 60 recommended his sons v. * * * Yes, that was have the letter Am.Rep. I Boyle Solicitor, am Judge, or the I written So. 57 6á0 FOSTER,
not
letter to
sure which. Here
Justice.
more
Judge. And another
letter a little
seems to declare
BROWN
Justice
* * *
believe,
though,
descriptive.
I
it
that
was reversible error
show that
always
like
doesn’t
people, that he
many
Hammett,
decedent,
dead
wife of
price
has
he
take into consideration the
at the time of
aside from
the trial. But
does,
particu-
pay
things
for the
he
appel
point
the fact
by
that
and,
drinking;
according
larly when
assignments
lant’s counsel in
on
brief or
history,
often,
most
and he was
drank
ruling,
account
is not erroneous
of that
it
reaction; and
dangerous and vicious in his
when
consider
that she was
we
the fact
and the
my feeling
feeling
it was
occurrence,
.present at the time of the
he was
the medical
rest
while
staff
concerning
difficulty
directly
insane,
that it
he was such
character
alleged
treatment of her
by
upon so-
to release
wouldn’t be
him
safe
produce
at that time.
If
State did
ciety;
drank that
that whenever
witness,
ac
her as a
not error to
present.”
potential
still
menace was
showing
count for
death
her absence
her
supplied.]
[Italics
prior to the trial.
appeal
only questions argued
The
on this
only
testimony
this
was not
Much of
plea
relate to the
hearsay,
second-hand,
mere
persons
competency
test
of the other
rely
seems
for his
BROWN
Justice
conferences, and
participating
conclusion,
the verdict and
right of cross-examination was denied.
aside,
should be set
on the fact that much
witness
above
of the
last
utterances
Kay,
expert
of the evidence
Dr.
an
on
italicized,
Judge
constituted the witness
Bryce
mental disease connected with the
Jury,
doubt went
in in-
and no
far
Hospital, was a second hand rendition of
fluencing
returning
a verdict of
conclusion
of members of the
staff
degree.
murder in the first
physicians
hospital.
of the
testify
The defendant did
as a wit-
Aside
fact
that no
ness, nevertheless,
court,
timely objection
it,
over
appears
was made
objections, allowed the state on the cross-
expressed
those conclusions were
in their
wife,
examination of the defendant’s
who conferences and examinations of defend
behalf,
ant, where,
testify
them,
(cid:127)did
as
his
many
per
witness
he was
impossible
the case
fact—
bring
brought
into
sonally
diagnosis,
make a
convicted in
defendant was
Mont-
they
cоnsidering
others
and dis
years previous
gomery,
so,
five or six
symptoms.
some
opin
cussing
When
trial,
which he was on
to the offense for
expressed
physicians
ions
have been
weapon
an assault zvith a
others,
sen-
Court, in
held
this
line with
penitentiary. And it
tenced to the
part
diagnosis
gestae
res
of their
physician testifying,
developed
the court’s
and that of the
since
ruling
fina}
before
engaged
profes
thus
in their
they were
that the
witness’s
question,
knowl-
*8
service,
expression
sional
and the
of such
edge
respect to the matter
hearsay.
in
was
opinions
coincident
“were
business decla
way
in no
testimony
This
affected the
rations,”
though
and admissible in evidence
witness’s
of
credibility
testimony
the
and
given
testimony
in the
of another witness.
question
the
light on
at issue
shed no
be-
Brantley,
Franklin Life Ins. Co. v.
231 Ala.
parties
or not
tween the
defend-
—whether
Taylor
834;
v. Atlantic Coast
time
sane at the
he cut
ant was
Hammett.
181;
Co.,
R.
232
Line
prejudice
was to
the
only effect
Its
Tillman,
Ins. Co. v.
84
Mutual
Tex.
Life
defendant, and no doubt
against
the
to
297. The fact
S.W.
19
influencеd
degree
verdict
some
the
for
expressed
opin
the “unanimous
the witness
degree.
first
in the
murder
staff”,
medical
rather
ion of the
than a
they
repetition
said in that
of
connec
what
mind,
verdict
To
the
the de-
my
finding
sufficient, in
tion
not
the
of
absence
degree
in
murder
objection
ground,
impeach
to
on that
such
weight
contrary
great
to the
is
dence,
evi-
Kay
testimony
as not being
of Dr.
of much
court erred
and the
denying
probative value. Whether he should have
for
trial.
new
motion
repeat
required to
what each
been
doctor
noted,
For
the errors
judgment
substance,
Kay
it
give
said in
as Dr.
should be
did,
reversed.
was a matter which defendant and his
objection
BROWN,
only
making
concur
by
J.,
dissent of
counsel could control
,
They made
elect.
extent he holds that there should be
they
or not as
should
therefore,
it
is not a
objection,
reversal
defendant on
such
and
because the
wife
testify
province of
to minimize
cross-examination
this
was allowed
Court
given by
effect
the" witness.
conviction of defendant
in Mont-
of it as
weapon,
gomery
with
and
assault
judg
It
is also insisted
penitentiary.
sentenced
other
to the
In
because on cross-
ment should
reversed
opin-
respects
majority
they
concur
wife,
lim
and
examination
ion,
application
for rehearing
ited to the
defend
is overruled.
ant,
ques
to a
she
allowed in answer
tion
that he was
testify
State to
September
Montgomery
convicted in
weapon,
ari
with
assault
Later,
penitentiary.
sentenced
connection,
brought
it
out
her
Deeton,
testimony that hе
a man named
cut
found guilty,
and a fine and costs
ANDERSON, BOULDIN, J., J., and C.