*1
these was either Div. 817. legal elements of the to include all essential Appeals Court of Alabama. principles jury by sought to be May 21, 1946. charges, fully such covered adequate very charge of the able oral Mandate Affirmed Nov. 1946. judge charges trial other written which Rehearing Denied June request appellant. It given at the is clear to us that no reversal should bе
posited phase case.
During argument jury attorneys
one made the prosecuting
following statement: (of “sitting “That brother” deceased) * * *
over there if he didn’t think jury duty would do he would walk their
over there and like the rat he shoot him is.”
Appellant’s objection argument to this sustained, appellant’s and the court at
request charged jury objec-
tionable statement was not to be considered evidence, jury and that should let “go your Appellant
same out of minds.” jury
thereafter moved that be dis-
charged prejudice possibly because of the
engendered, appellant granted
a new trial. The court overruled this mo- appellant
tion to which action of the court
excepted.
The above remarks were of course be-
yond propriety. the limits forensic judge sustaining
action of the trial
appellant’s objection, in instructing the jury that put such should be remarks out minds, did, opinion of their in our suffi-
ciently prejudicial dilute the effect say any
remarks the extent that to now
harm appellant resulted from same heavy
would necessitate a resort sur- conjecture.
mise and imposed jury sentence their finding view of
guilty of murder in the degree, second we any prejudice indicates that
think
might improper generated have been
remarks fact eradicated premises.
court’s action our the record is free of
In error
materially rights affеcting substantial appellant, and an order. affirmance
Affirmed.
Beddow, Ray Birmingham, Jones, & appellant. Appellant alleges was unable time. to find months after his work and few marriage Army. he enlisted in the Canadian *3 Gen., Atty. and Mac- McQueen, Wm. N. - alleges He Kozlowski received $79 Mrs. Gen., Gallion, Atty. for Donald Asst. per month his allotment Ca- State. Army nadian after a However service. discharged few months Kozlowski was Army,
from the Canadian the reason for clear, his discharge being though not on deny cross-examination he would not it duty. because was found drunk Thereafter in New he and wife lived Jersey year, for appellant being about employed during this From there time. they eventually Sylacauga moved appellant employed powder plant. The evidence introduced the State May 18, was to effect that on 1945 Mrs. Kozlowski engaged Sara Wil- Jane liams, a neighboring stay girl, with young their two children while she and Kozlowski Birmingham went to during the part afternoon night. When Miss Williams arrived was told thаt HARWOOD, Judge. plans altered Kozlowskis their Zigsmund Kozlow- James go fishing. decided to Kozlowski went charging indictment ski was tried into the kitchen and mixed some dough degree murder the first of his him with bait, balls for changed Kozlowski Mrs. jury wife Willodeen Kozlowski. from her dress into slacks. manslaughter guilty Rudd, driver, a bus they L. V. testified punishment degree and at im- fixed first powder plant, his bus to the rode penitentiary ten prisonment during the ride he heard Kozlowski Mrs. years. they Sylacauga. insist that return to How- spent early New Kozlowski life in ever, of the line end Mrs. Kozlowski completing eighth grade Jersey. After followed Kozlowski out of the To bus. existence, peripatetic he led a in school river it get necessary would be Coosa keep, in a a farm for his saw- working on point. the river bus at this to transfer or mill, in a snuff mill. In 1937 Burks, Rudy fishing camp owner of Army, States the United enlisted Kozlow- testified in the Panama Canal stationed Zone. camp p. at his skis arrived around 6 initiated a cor- m. Through a fellow soldier he rent lady wanted to a bоat and he young Kozlowski respondence with a Tennes- keys to gave him three boats with the his wife and the vic- later became She see. Kozlowski tragedy understanding that would re- about which case tim of keys selecting a after Koz- discharged from turn Kozlowski boat. centers. keys, return the service, lowski he next army about six months did midnight when around Kozlowski alleges of “nervousness” result- saw him because place accompanied by tropical duty. Thereafter he re- rеturned to his ing from James gave At this time after about two Abbott. Jersey New turned to pay bill to for some young Burks a dollar tele- and met the years came to Tennessee making. calls he Abbott corresponded. phone Aft- lady whom he they bill was were married and dollar months This wet. er several home, wet, witness could Kozlow- trousers their own established being: employed say whether Kozlowski’s shirt was wet as a school teacher at ski á56 vicinity been bank in willow was lined with “it would as was of а kind trees, dry.” all of more similar them or less it was whether
hard detect wet. appearance. When asked where woman, was colored Hampton, Pearl went in re- the river Kozlowski the boat near fishing on the river bank ply “out there.” enter woman man and landing. She saw a clothes, As to the condition of his D. H. ex- afternoon, the woman boat late built, testified Simmons fire had helped into being her hand and tending night being chilly, that when Koz- couple saw the She the man. the boat lowski warmed himself near the fire *4 river, when and paddle the down off down, clothes steamed from the waist and laid opposite her point the man a reached cigarette he saw Kozlowski a taken a small picked up paddle down and the pocket. shirt from his he what see could not She brown sack. sack, T. Finn the last she saw touched Kozlowski’s shoul- and out of the got J. him, the floating against down der staggered and his boat was he them storm dry. thunder shirt Shortly this a felt river. The storm she wеnt home. up came and ap- T. M. Dobbs said Kozlowski’s shirt long not know how severe, did but was she peared dry to him. it lasted. opin- Louis Evans that D. testified in his Chancellor, boy al- a colored Dyneamer the thunder lightning ion and ceased time, at this saw the bank fishing on so p. day around 6:30 Mrs. Kozlow- m. last he saw couple in boat. ski was Aubrey drowned. Kozlowski and line, a fishing with hand man was them came camp to house near the convict her her face sitting with the woman p. help. 8:30 and 9 m. seeking betweеn came and the storm After this hands. When way he asked Kozlowski on the home. called him mother the river if his wife had drowned Kozlow- replied ski “I called her but I couldn’t make appellant came Aubrey testified Fred her answer.” When he asked Kozlowski river, camp on the the convict capsized if boat had turned over or employed, 8:30 and between he was where “Yes, replied, Kozlowski we both fell out.” re- tragedy and night of p. on the 9 m. After had been river, the boat found аt the Aubrey that Appellant told help. quested pointed and Evans out to Kozlowski that he needed river and was over, it had not turned replied Kozlowski Kozlowski him Aubrey said told help. * * * got “No she scared light- and clap thunder came she “there ning up she got and started towards them out into and threw ran towards him jumped fell out he of the out Ap- the boat.” turned over river and * * boat When this witness asked sport shirt of which was pellant’s shirt poles Kozlowski where his fishing- were a man had like matеrial, “looked thin pocket Kozlowski pulled reached in his bit,” a little running had sweated drop out a line. of stick “would kind though the sleeves Adair, Davis, police Childers- H. K. Aubrey E. out.” called J. J. James prior appellant Elliott testified to the home of death of and then took burg appellant Mrs. Kozlowski had told re- Evans turn called them Louis D. Evans. he Dobbs, spectively that asked and these and T. M. Mrs. Kozlow- Burns Mr. divorce, ski for a but that she appellant to river. three went with refused request. рersons gathered number of other also A T. hearing trag- Lancaster and river bank on Mrs. Mrs. A. L. J. testimony permitted testify edy. detailing their Cottle were ob Without we without summary jection fair of their evidence was on several occasions Koz think a Mrs. the ex- had come to each respectively, that Kozlowski was confused as to lowski place tears them that alleged he had told act location of Kozlowski Mr. women, going had fallen He with other river. could detаiled distraught willow tree to which he had her state her marital locate the over diffi not Appellant present when he tied the boat bank. returned culties. conversations, testimony However evidence showed the these and such objections elementary hearsay. opposite to the boat; No end of that his wife however, interposed grabbed testimony at him against or fell him and that impropriety the ad- fell into the therefore river on one side of the boat other; not reviewable. and he mission of this on the climbed boat, back into the and saw his wife’s hand Smithson, Koz- of Mrs. Mrs. D. E. sister downstream; and head rise about 12 feet lowski, objection testified without jumped dived or into living while and Mrs. Kozlowski Mr. unable perfect to reach his wife res- in Sylacauga Kozlowski had Mrs. told her cue; boat, regained and came to an night of a her wanted overhanging willow on the bank and tied automobile ride. the boat there. carrying jar for the started сar gasoline. attempted We have go, Kozlowski refused to to summarize charging that Kozlowski intended kill the order which it is body. presented. her very and burn About two weeks In fact first witness *5 presented Kozlowski had drowned Mrs. Mrs. the State Mr. C. White. J. ap- Smithson Smithson and had asked Mr. Mr. White has lived near the Coosa river pellant instance, why years about this he car- for seven during spent that time gasoline ried to the car. Kozlowski period ac- much time on Also it. cording would reply, to Smithson Mrs. has assisted recovering two bodies just put “Well I portion it Smithson there.” Mrs. of from the river which was gone had Kozlowski’s house the drowning the scene of in this No case. night death, her while supplied by of sister’s there information is his testimony the clothes Kozlowski type washed had as to the of bodies he assisted in re- trip. worn on river She said she found covering river, from is whether dingy muddy female, trousers and his shorts from male adult or Mr. White child. water, dry shirt was but his from the waist assisted in the search for Mrs. Kozlowski’s up. body body he who located her and was day drowning third after the about a There was also about a below where Kozlowski had mile tied year prior to his wife’s death Kozlowski boat willow tree on his return to policy had taken out life insurance $500 length White testified at as land. to his beneficiary, on his wife with himself as familiarity with the currents and flow of policy pay indemnity double in case of river in the area of the Kozlow- accidental of death Mrs. Kozlowski. drowning. He ski also stated that оn the Rash, expert M. connected with the J. day drowning river was of about Department Toxicology, per- State high pretty four feet swift. autopsy upon body formed Mrs. testimony apparently This in an recovery Kozlowski after its from ef- the river qualify expert fort as an days White drowning. three after the He witness he was permitted, for thereafter over the signs body, of violence on the ob- no evi- no poisoning, opinion jection appellant, give dence her drоwning. following hypothetical ques- from answer to the death resulted tion: Statements Kozlowski concerning the Now, assuming drowning “Q. of his wife made to Bal- fell W. A. low, Highway sixty feet from Patrolman, State the water and Earl into bank of Howell, Deputy you edge Talladega Sheriff of the water’s there have Coun-
ty, witnesses, scribed, your judgment, related these how far two down your judgment, the voluntariness of such statements it go hav- would ing been first established. The would come to the account beforе it back bank? Well, substantially to each officer was the A. don’t think it would to the I same and was bank; to the effect that if the had been out I think trip return sixty feet from the paddling the much as bank it Kozlowski would clap island, boat in the front gone A sudden a mile below end. of have the second lightning frightened thunder and flash of a little better which was than mile from she rushed towards from she was where drowned.” trip. testimony witness said started their That return following In his finally bet- he river af- a little bank of the been reached the position would boat ter it was his wife had fallen in river where ter than two from miles trees, area, dark, rather with the willow and was unfamiliar was found tied testimony As shocked accident. than distance course one mile body a direction and result he in one wandered reveals he found Mrs. finally way then finding the river another before floating near the bank camp. County There also the convict Talladega side. large boulders there quar- Appellant he and his wife admitted river in this in the bed and rocks times, sometimes to that he drank relled area. excess, guilty on occasions Benson, Martha the defense Mrs. For however that philandering. He claimed appellant, testified that sister of along gotten well and his year during the known Mrs. months, stoutly recent maintained Jersey. in New resided the Kozlowskis that the drown- throughout his examination woman and a nervous Kozlowski was fright- ing wife resulted from of his by storms. frightened particularly clap of thunder and ened conduct after Kozlowski, alone, if storms Mrs. During lightning. flash of always company. seek brief Counsel neighbors Jones, Mrs. Gaither andMr. *6 argues there is no vigorously that substan- Sylacauga, in testified Kozlowskis n in record sufficient to es- tial this evidence knowledge the Kozlowskis that to their corpus that delicti, and before tablish the together. get along well seemed inculpatory any statements of defend- in the efforts to assisted A. Burton D. may evidence there ant introduced in night body recover Mrs. рroof corpus independent of must be time on that At one she was drowned. prop- part the above latter of The delicti. on the appellant went out night he and forth a well founded course sets of osition attempt locate the in an in boat river a However, agree we do not legal doctrine. into the Kozlowski went spot there appellant’s that was a counsel was so swift current However the river. corpus proof of the delicti. fаilure and aban- unmanageable boat was by Competent evidence introduced witness testified This efforts. their doned that this'defendant tended to show State wet, and further shirt was that Kozlowski’s acquaintances occasions told several attempted that when wife, of divorcing desirous that was pack taken from which he had cigarette consistently she deceased, “drip- was cigarette pocket the in shirt proposals; deaf turned a ear ping wet.” Birmingham fоr an out- going to instead of great length, testified The trip originally planned, fishing ing was as His cross-examination. particularly on substituted, apparently against the wishes in which his wife manner version of Kozlowski; of Mrs. or desires substantially same as met her death in a boat his wife on the fendant took patrol- highway the account trip which Coosa from did sheriff, deputy set and out above. man and return, in the river Smithson of Mrs. As to days three later. some jar the time he carried concerning and thus aroused his car gasoline to presented Thus we have appellant said he person, death aof and a reasonable infer his wife’s attitude irritated at became agency produc of defendant’s ence explain to her refused to suspicions and death, in tion of the that he was the last jar gasoline, carrying the in purpose alive, person with she was seen whom n merely putting intended which it a motive. While is true motive is car. indispensable and nоt an element of proof resting State, twenty burden of on "the it it about that was Appellant stated- always legitimate subject inquiry, eight by his wife’s watch is minutes of
459
evi-,
competent
statements were
mentioned
cases where
especially
so
theory of ad-
evidence
this case on
is circumstantial.
against a defendant
dence
State,
690,
against
10,
missions
interest.
v.
State,
Ala.App.
68 So.
13
v.
Jones
Jones
267,
State, Ala.App.
supra; Robertson
corpus
23
delicti
v.
cases therein cited.
125
denied
So. 60 certiorari
evi-
by circumstantial
may be established
Ala.App.
61;
25
from
So.
Morris
by evidence
v.
dence,
may
be shown
175, 142
that the
inference
So.
which
a reasonable
may be drawn
committed
offense has been
import was the
serious
Of most
and circum-
proved facts
jury, the
trial
the wit
permitting
court’s action in
together. Warren
being considered
stances
opinion,
give
ness White
over the
State, ante, p.
So.2d 51.
timely objection
appellаnt,
that Mrs.
corpus
have been found a
opinion the
delicti Kozlowski’s
In our
case,
assuming
from where
was found
sufficiently
in this
and mile
established
it
made
the de
the river
the area that de
she fell into
being so the
statements
alleged
properly
be considered
fendant
she fell in. To establish
fendant were
qualifications
expert
further ad his
as an
it was shown
jury.
statements
near
whether or not a that this witness has lived
the Coosa
as to
missible
corpus
spent
years
river
delicti has
fоr seven
much
prima
case of the
facie
thereon,
depends
the facts of
time
and further
been established
period
case,
recovering
assisted
two
particular
while
true
each
at least
Whether
be convinced
bodies from the
the bodies
court
first
river.
must
recovering
has been com
assisted in
prima
that a crime
White
those
facie
it,
children,
mitted,
females,
consider who did
males or
before it will
adults
shown,
stage
fact
mean that
that a not
nоr
of the water
does not
temperature
should be shown
committed
shown.
It was shown
crime has been
independent of the
wholly
that at
of Mrs. Kozlowski’s
re
the time
drown
crime,
ing
to the
river was about
the accused
four
lation of
feet
*7
cases,
high,
case
we think this
is
the current was
certain
of which
In
swift.
our
opinion
background
defendant com
one,
the
White’s
fell far
the evidence
short
may
“requisite
with
him with
endowing
be so blended
of
the
spe
mitted the crime
corpus
knowledge, skill, experience
delicti as to make cial
proof of the
or
the
train
impossible.
State,
402,
ing” (See
Ducett
separation
v.
Rule
Model
the
of
Code
Evi
dence,
351;
State,
34,
Desilvey
Institute)
v.
American
qualify
65 So.
Law
to
186 Ala.
163,
expert competent
give opin
as an
the court
to submit
issues in a criminal
jury,
rule,
case to the
and the scintilla
specially).
CARR, Judge (concurring
sense,
apply
prose-
does not
criminal
conclusion
in accord
amI
There
cutions.
must be
substantial
original
Judge Harwood
reached
tending
prove all
elements
judgment
that the
he held
wherein
Grimmett,
charge.”
parte
Ex
reversed,
court should
of the lower
4=61
at bar.
v. STATE.
CAMPBELL
In the Ducett case lat- alone a room fendant Appeals Court of of Alabama. pistol ter received a fatal wound. June 1946. act of physical strongly rebutted facts suicide. Denied Aug. 1, Rehearing DeSilvey dis-
The evidence case and the defendant closes that the deceased car, riding in a os- together
were last seen
tensibly pur- avowed visit a friend. completed,
pose journey was not nor anticipated
was it friend. The found some months deceased was strongly in-
later under circumstances that her death foul
dicаted that she came to in- strong In addition there was
means. testimony against criminating the defend- crime, indicating a
ant motive circumstances
well as set of incident to journey fateful inconsist- ent innocence of accused. shown,
Flight trip including was also city northern over two thousand miles
away, jail and a break he was incar- charge of
cerated on the murder. opinion by
In a well-considered Presid-
ing Judge Bricken of this court Hand Ala.App. 317, 159 So. general held affirmative
charge my It was due defendant. thapthe view in the circumstances case at strong are not as as the re- cogent
bar cited Hand
case, supra. fully realize that where
I there is evi- tending a substantial nature
dence of to es- tablish the material elements a criminal
n case, *9 jury question presented. amI n equally responsibility aware
courts to make innocence secure even may
though unpun- crime sometimes
ished. shore,
“The no sea has
the court that embarks it is without compass.”
rudder or BRICKEN, J., forego- concurs P. opinion CARR,
ing J. CURIAM.
PER authority
Affirmed on
of Kozlowski