Littleton v. State, 128 Ala. 31

Littleton v. State

128 Ala. 31 | Ala. | 1900

HARALSON, J.

1. It is not denied that Dr. F. G. Hendrick, witness for the State, was an expert as a physician and surgeon. He described the wounds of the deceased, stating that on an “examination of her body he found bruises on her throat, — 'three on one side and two on the other, — the three on one side were dark and bloodshot, each about the size of the end of one’s finger, and the three were joined by lighter colored blood-shot appearance,” etc. He was asked by the solicitor: “What in your opinion was the character of the instrument that produced the wound on the throat?” and he answered,’ that it was blunt. The defendant objected to both the question and answer, on the ground that the evidence called for and elicited was illegal, and was merely the opinion of the witness. The objections were properly overruled. The ydtness described the charac*37ter of the wounds, and it being a matter with which he was specially acquainted, he was competent to express an opinion in connection with the description he gave of the wound, and it was for the jury to receive the opinion in connection with the facts on which it was based. Walker v. The State, 58 Ala. 393; Bernett v. The State, 52 Ala. 370; Prince v. The State, 100 Ala. 145.

2. There was no error in allowing the witness, Martha Dixon, to testify, that the deceased “was in a family -way.” It was the mere statement of a collective fact, and admissible as such. — S. & N. A. R. R. Co. v. McLendon, 63 Ala. 275; A. G. S. R. R. Co. v. Yarbrough, 83 Ala. 242; Thornton v. The State, 113 Ala. 46.

3. The witness for the State, J. W. Meadows, testified that he saw two tracks on or near the body. He was asked by the solicitor: “Were the two tracks of the same or of different kinds ?” In reply he stated, against the objection of defendant,- that he “saw two different tracks made by different 'sized shoes.” This was not an opinion of the witness from facts stated, in identification of the tracks, as to who made them, but it was a statement of a physical fact merely, — open to the senses of any -one, — that there were two tracks at the place where the body was found, which were made by different sized shoes. This ruling was entirely in ’accordance with our former decisions on the subject. — Hodge v. The State, 97 Ala. 40; Gilmore v. The State, 99 Ala 155; Terry v. The State, 118 Ala. 79.

4. The correctness of the charges given for the State, except as to the one numbered 5, is not questioned by the defendant in argument, and the only vice he urges in this -one is, that it is ambiguous and misleading. If this were a just criticism of the charge, it would not be ground for reversal for its giving. — Avery v. The State, 124 Ala. 20. But, it is not subject to this objection. It is neither ambiguous nor misleading, but the statement of a well settled legal principle, and refers alone to the defendant and not to another.

5. Charge 4 was properly- refused. While the reasonable doubt postulated in the 'Charge would be good ground for not convicting the defendant, as we. have de*38cided (Grimes v. The State, 105 Ala 87), yet it would not be ground for his acquittal. The reasonable doubt or guilt by one juror, or by any number of them less than the entire twelve, could not affect the others who did not indulge such doubts, and unless all were reasonably doubtful of guilt, there could be no verdict of not guilty Such a condition might work a mistrial, but never an acquittal.

■6. The indictment contained four counts; the 1st charging the murder of Ella Hodges by defendant “by putting her into a mill pond whereby she was drowned;” the 2d, “'by choking her and dragging her into a mill pond whereby she was. drowned;” the 3d, “by beating her with some weapon unknown to the grand jury, and and putting her into a mill pond in some manner unknown to the grand jury, whereby she was drowned,” and the ájth, “by beating her with some weapone unknown to the grand jury, and choking her in some manner unknown to the grand jury.”

It thus appears, the killing of deceased is alleged in the first count to have been accomplished by defendant simply by drowning her in a mill pond, without stating the means by which he affected the drowning; that the second 'and itliiid counts allege that he' drowned her in the mill pond, and states the means by which he accomplished the result, and the fourth, that he killed her by beating and choking her. The 7th charge is directed to the entire indictment, and no single count thereof. The first and fourth counts, without special reference to the second and third, show very strikingly the vice of this charge. The jury, under the charge, might have believed beyond reasonable doubt that defendant killed deceased by merely drowning her, as charged in the first, and may not have believed beyond such doubt, that he killed her by beating and choking her, as charged in the fourth count; or, they may have believed beyond reasonable doubt that he killed her by beating and choking and not by drowning her. The averments !of the manner in which deceased was killed, as charged in each of these counts, are material. The jury could not, under-the charge, have found defendant guilty, unless they believed the averments on both of these counts, which con*39tained different and inconsistent material averments,— a condition, tlie office of separate counts in an indictment was designed, among other things, to prevent.

This charge is a literal extract of one approved in White v. The State, 103 Ala. 72. It is noticeable that averments in each of the two counts in the indictment in that case, were in substance and legal effect the same, distinguishing (the case from this one. Furthermore, there were no degrees in the offense there charged, as in the present case; and in Stoball v. The State, 116 Ala. 454, Where the same Instruction was asked in an indictment for murder, it was held, that as- applied to the indictment in White's Case, supra, and offenses of which there are not differing deguees, each of which is comprehended in ¡the general allegations of the indictment, the instruction was correct. But as applied in a case of murder, and other offenses of which there are degrees, it is erroneous.

The foregoing are the only errors insisted on in the argument of defendant’s counsel. We have, however, examined the other exceptions taken in the course of the trial, and finding no error in any of the rulings of the court below, its judgment and sentence must be affirmed.

Affirmed.