11 So. 2d 749 | Ala. | 1943
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *620
The indictment was for murder in the first degree, in two counts, and was in compliance with the law. Wilson v. State, Ala.Sup.,
Defendant's recital of the facts is "that David Blakey's dead body was found in the Alabama River November 28, 1941, some six or seven miles below the Birmingham Highway Bridge. The evening of the 12th of that month, he met Charlie Ray Holland and Ellis Howard Rowe, drank and rode around with them, and alive or dead, was thrown from this bridge by one or both of them, with his hands tied." The two men were indicted jointly and tried separately. This defendant filed pleas of not guilty and not guilty by reason of insanity and was given the death sentence by the verdict of the jury.
This court has held that circumstantial evidence may be admitted to prove the corpus delicti and is sufficient if such is its effect. McDowell v. State,
The wounds on the body of deceased were described by expert and nonexpert witnesses. There is no requirement of law that the witness describing the injuries to the body must be an expert. Pitts v. State,
We hold that there were tendencies of evidence that warranted the trial court in submitting both counts of the indictment to the jury. McMillan v. Aiken,
Many of the refused charges ignore that death could have resulted from injuries alleged under the two counts of the indictment. For example, charge A ignores count 1 and demands an acquittal based on death prior to the impact to the water.
Charges B, C and D assume death by impact with the water and ignore the fact that death could have been caused as charged in the other count, by "striking with a rock or some hard substance."
Charges F, G and L ignore other causes of death than by drowning.
Charge M ignores other means of death charged in count 2 and instructs the jury to predicate verdict of death by impact with the waters. Charge O fails to predicate belief of jury on the evidence. Lewis v. State,
The record indicates objection to the introduction of the confession of this defendant. However, the necessary predicate was proven and preceded the introduction of the confession in evidence. Henry Daniels v. State, supra; Hunt v. State,
The defendant had pleaded not guilty and not guilty by reason of insanity. The question of guilt or innocence was for the jury and was properly submitted. The record has been carefully examined and there is nothing that would indicate defendant's insanity (taking into consideration the conduct of the defendant on the night and at the time of the homicide), or to warrant the submission of the issue of insanity to the jury. Peters v. State,
In the oral charge of the court the jury were instructed as follows: "The defendant, to this indictment, pleads, first, not guilty. The moment he pleads not guilty, the burden of proof rests upon the State of Alabama to prove his guilty (guilt) beyond a reasonable doubt. Then he says that he is not guilty by reason of insanity. Well, for a person to be insane, the law says that they must, that that must afford a very high degree of proof; that they are required to show that they must not know the difference between right and wrong, or have some objective influence that makes them commit a crime, although they do know the difference; but, frankly, I charge you, there is no evidence of insanity in this case."
This charge proceeds further with the statement that there is evidence that the defendant was drunk and that the law says that a person under the influence of liquor "to be so drunk as to excuse from crime, he has to be so drunk that he is incapable of forming a specific intent. Now, if he *624 has so proven that he was incapable of entertaining a specific intent, then it could not be murder in the first or second degree; either; it would be either manslaughter in the first or second degree. But that is the test required in drunkenness; that is, the party was so drunk that he is incapable of forming an intent."
The record recites that when the court had delivered the oral charge "Both sides announced 'satisfied' with the charge of the court." The court then said: "Now, I have four charges that I give you at the instance and request of the defendant. They are not in conflict with anything the Court has heretofore charged you, they are a part of the law, and should be carried by you into the jury box and be considered along with the oral charge of the court when you examine the evidence in this case in the light of the law. (Reads charges to the jury.) Retire and make up your verdict. It should be a fair and an impartial verdict. It must be a unanimous verdict. Take these charges, and whatever exhibits you have, select your foreman and arrive at your verdict."
There was evidence of unwillingness or failure to attend school, of immorality, etc., but no evidence of insanity. Emotional insanity or moral obliquity will not sustain plea of insanity. Hall v. State,
Appellant's counsel recites the evidence which he thinks shows insanity, viz.: that defendant's father worked intermittently with WPA, got in jail for being drunk; that he had a stepmother and there were eight other children beside himself, most of them small half brothers and sisters; that the defendant gave trouble, refused to go to school, married a loose woman; joined the army and was discharged; thereafter enlisted under his two first names and when his finger prints were taken, he was again discharged from the army; that he persistently frequented honky tonks; associated with loose characters and on the fateful day, drinking heavily alone and with others and with the deceased, claimed himself to be a British Cadet, and in school "never went beyond the fourth grade." This is the evidence upon which defendant's counsel insists that the charge of insanity should have been submitted to the jury. Code 1940, T. 7, § 270.
This statute comes to us from the Code of 1852 unchanged. A judicial interpretation of the last clause of the statute by this court was after its codification in the Revised Code of 1867. In Dugger v. Tayloe,
And like conclusion is announced in Thornton v. State,
The same conclusion was announced in Vinson v. State,
In Cole v. State,
To the same effect are Prince v. State,
We have examined the cases cited in Code 1940, T. 7, § 270, p. 267, and in each of them it was shown that such charge on the effect of the evidence was given where there was a disputed question or inference to the contrary.
There are other decisions to the effect that the provisions of the code touching this insistence are that the court may state to the jury the law of the case and also the evidence when the same is disputed, "but shall not charge upon the effect of the testimony, unless required to do so by one of the parties." Code 1940, T. 7, § 270.
It is also held that if there is error to charge orally on the effect of the evidence, without a written request, the same instruction made in writing cures such an error. O'Bar v. Southern Life Health Ins. Co.,
Such are the decisions of this and the Court of Appeals. However, we have examined the record and find no evidence discharging the burden of proof that the law casts upon a defendant to show his insanity within the rules that obtain and that excuses from crime. With that understanding of the evidence and the rules of law that obtain, we will say there was no exception taken to the oral charge of the court, and we rest our judgment thereon. There was nothing presented to this court for review as to the instruction to the jury.
Under the duty imposed upon this court to examine the record as touching introduction of photographs contained therein, we are of opinion that they were properly admitted and were necessary to indicate how the body of the deceased was bound as to hands before he was cast into the stream. The fact that these photographs are gruesome will not necessitate a reversal of this cause. They were necessary and material as pertinent evidence preceding the questions to the state toxicologist as to whether a person stricken with blows on the head, with hands tied as shown in the pictures, would survive after being thrown from the bridge into the river. It is insisted that the question called for no expert opinion and should not have been allowed in evidence. Birmingham Elec. Co. v. Ryder,
Dr. Nixon, the State Toxicologist, was called to examine the body of the deceased, and stated that he had had much experience in examining dead human bodies and in forming an opinion as to the possibilities and the injuries indicated in causing death. The witness then stated there was a wound on the right jaw, breaking it, and that on the left front quandrant of the skull that went all the way through the skull and pressed the bone down; that he could not tell the instrument that had done this, but it was a hard substance with metallic elements or residue, that such wounds "could have produced his death." That his hands were tied then. The witness was then asked: "Hurled from the bridge into the river, with him (so tied), hurling him from the bridge over into the river, or pushing him off from the bridge, when they were down like that, would that have caused his death?" Objection was interposed and the witness answered: "I don't quite understand the question, Judge." *626
He was then asked: "With his hands tied, and if his head was in that condition that you say it was in, if he was hurled from the river bridge, with his hands tied, and the blows stricken on him, could he have maintained himself or sustained himself in the water to have gotten out".
The court sustained the objection to that part of the question "to have gotten out" but allowed the witness to answer the question as to the cause of death and the witness answered: "From the facts I found, the wounds on the body, the most serious injury was the injury to the jaw. That could have caused his death, I think."
The witness was cross-examined by defendant's counsel and stated that his duty as toxicologist is not confined to investigation of poisons only, but to the investigation of all violence. That he would investigate any case of violent death when the state calls him to do so. He said: "The deceased had one blow on the left frontal bone. I would say that a heavy blow there could cause a paralysis of the nerve centers. * * * I don't say that his death was caused from those blows. I say that death could have resulted from that blow, at the side of his head."
He testified further: "The man could have drowned; injured by the wound and thrown in the water and drowned." That he had examined many persons who had drowned and knew how to determine when such was the case. Lungs will not be full of water but usually contain some. "I couldn't say that this death was caused by drowning, because the lungs were decomposed so badly and eaten by things in the water. There was nothing of the lungs intact. There was decomposition of the tissues, the lungs had been dissipated, destroyed. I looked to see. * * * I looked in the chest cavity. He had the debris left from the decomposed lungs — they were practically gone. There was water all in his body, from the river. His body was broken in many places."
The foregoing testimony shows that Dr. Nixon was giving expert testimony rather than the conclusions that a nonexpert witness could draw from the knowledge of the same facts. There was no error of the trial court in its rulings as to the introduction of the testimony given by this witness.
We have tried, in the consideration of the questions presented, to follow the arguments of counsel. Having done this, and from our examination of the whole record, found no reversible error, the judgment of the circuit court is affirmed.
The date set for the execution of the sentence of the law on the defendant having passed pending this appeal, it is hereby ordered by this court, that Friday, the 26th day of March, 1943, be and the same is hereby set for the execution of the sentence of the law on this defendant.
Affirmed. Date of execution set for Friday, March 26, 1943.
All the Justices concur.