97 So. 73 | Ala. | 1923
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *116 The charge was infanticide. The conviction and punishment were for murder in the first degree, by imprisonment for life.
The indictment was not subject to demurrer interposed. Reese v. State,
In Jones v. State,
"It was permissible to name the defendant under an alias. * * * If the indictment lacks certainty concerning the identity of the person killed, or lacks averment excusing uncertainty in that respect as that person was not otherwise known to the grand jury, than as therein named, such defects might have been available here if they had been made in the trial court."
In Viberg v. State,
All the rulings on the testimony were made on the cross-examination of witnesses, with two exceptions to which we shall refer later. It is a well-settled rule that in the cross-examination of witnesses there is a wide latitude resting in the sound discretion of the court, and unless it appear that palpable error has been committed to the prejudice of the defendant, in limiting his right of cross-examination, such rulings will not be interfered with. 14 Mich. Ala. Dig. "Witnesses," § 189 et seq. p. 1148. The question propounded to the witness, "Did you intend to put anything on it?" to which the state objected and was sustained, and to which defendant duly excepted, called for an uncommunicated motive or intention that was not admissible. 1 Mayf. Ala. Dig. § 15, p. 329.
The state proved without objection that defendant was the father of the newborn infant that was murdered; that defendant was in close proximity when the child was born, and came at a later hour during the night and took it away; that the dead body was found next morning, buried near the place of its birth; that its skull was crushed; and that this latter fact tended to show that its death was caused by violence at the hands of some human agency, rather than by being exposed to the cold or by freezing. Evidence that defendant was the illegitimate father of the child was admitted (with other evidence) as tending to show motive on his part for its destruction.
The defendant sought by cross-examination of the mother of the child to show that within the period of gestation she had consorted with men other than defendant. This tended to shed light upon the positive statement of the witness that defendant was the father of the child. However, the question, "Haven't you received the company of men frequently, and haven't you done so up there for many years?" was not sufficiently *118
definite as to call for the admission or denial of criminal intercourse on the part of witness, and was not confined to a time within 9 or 10 months (Henderson v. Henderson, ante, p. 73,
The fact that one Winsett protested to witness of her condition, and warned her in respects indicated, was immaterial to the inquiry on defendant's trial for murder. Witness had stated that Mrs. Morgan never asked her what was the matter with her, and that she did not tell her (Mrs. Morgan) — did not say, on the morning after the birth of the child, that she had neuralgia. There was no error in declining to permit the witness to be further cross-examined by being asked, "What did you tell her was the matter with you?" The witness had stated she had told Mrs. Morgan she "was sick." The further matter sought to be inquired about was immaterial. The questions to Mrs. Morgan, sought to be propounded by defendant, as to whether or not she had ever been married, and of the nature of her private relations, or of the parentage of her children, were immaterial.
The witness Thomason, having testified to the discovery of the body of the dead child, was sought to be asked by the defendant on cross-examination: "Did Mrs. Addie Winsett tell you she found a piece of quilt out there, and ask you what to do about it?" The objection of the state was properly sustained to the irrelevant inquiry.
The testimony given by Dr. Beck, on behalf of the state, tended to show motive on defendant's part to create an abortion of Emma Johnson, who was "quick with the child" that was delivered and then murdered. The conversation had by defendant Reeder with that doctor had specific reference to Emma Johnson's being enceinte.
There was no error in not permitting defendant's counsel to ask him, "Was there any occasion to wash your boots?" Defendant had stated that he did not wash his boots and hands, as Mrs. Morgan had testified. The condition of the boots immediately preceding the time indicated and the opportunity offered to soil them were matters of inquiry that may have been pursued. The question, "Was there any occasion to wash your boots," if not calling for uncommunicated motive or impressions of the defendant (1 Mayf. Ala. Dig. 329), at least called for a conclusion of the witness in the nature of self-serving testimony. However, the question was immediately changed by the counsel for defendant, as follows: "Was there anything on your boots which was necessary to be washed?" There being objection on the part of the state, and the same having been sustained, defendant reserved an exception. Thereupon the bill of exceptions recites that the witness, in answer to the question, "Was there any blood, mud, or any other foreign substance on your boots?" replied, "There might have been some mud on my boots; nothing else at all." No error was committed in the foregoing rulings of the trial court.
It is next insisted by counsel that reversible error was committed in the explanation made by the court of defendant's given charges 30 and 31. It is an established rule that where oral instructions are given to the jury by the court, and no exceptions are reserved thereto, nothing is presented to this court for review. Ex parte State, ex rel. Smith, Atty. Gen.,
Refused charges 9 and 10 are bad in form, and invade the province of the Jury. Lee v. State,
Refused charge 22, covered by given charge 11, is bad in form, is confusing and contradictory. Lee v. State, supra.
Refused charges 23 and 25 do not require the consideration of the evidence in the case by the jury. Edwards v. State,
Refused charge 24 does not require a consideration of the evidence in the case *119
(Edwards v. State, supra), and does not hypothesize that the testimony of the witness is willfully or corruptly false. Robinson v. State,
Counsel for appellant refer to refused charge 28, "Record, page 15." There is no such charge. A given charge so numbered is to be found on page 11 of the record.
Refusal of charge 35 was fully covered in given charges 34 and 36 and the oral charge.
Refused charge 37 contains a verbal inaccuracy — "convicing" for "conviction" and this justifies its refusal. However, the charge fails to set out what was said by the solicitor, which, so far as we can tell from the record, was based upon the evidence. It is misleading; while what the solicitor said is not evidence itself, the solicitor was authorized to indulge in a proper discussion of the evidence.
Charge A was abstract. There is no evidence as to manslaughter.
As to charge 14, it is covered in substance by other instructions. Charges to like import have been approved. Odom v. State,
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.