Russell v. State
78 So. 916
Ala.
1918
Check Treatment
ANDERSON, C. J.

[1] The right to challenge, under section 7278 of the Code of 1907, because the juror has a fixed opinion against capital or penitentiary punishment is available only to the state, and it can either exercise or waive this right. Wesley v. State, 61 Ala. 282; Harrison v. State, 79 Ala. 29; Thayer v. State, 138 Ala. 49, 35 South. 406.

[2, 3]- When the sanity of the person is being investigated and determined, and there is other proof tending to establish the mental incapacity of said person, it is competent to show in connection therewith the insanity of his ancestors or other blood relatives. Wear v. Wear, 76 South. 111; 1 7 Ency. of Ev. 453, 454; 22 Cyc. pp. 1117, 1118. The trial court erred in not letting the defendant prove by the probate records that his granduncle had been declared a non compos mentis and had a legal guardian, and also that his cousin Mrs. Draper had been committed to the insane asylum and died while an inmate of said institution. 14 R. C. L. § 73, p. 621. True, the relationship was rather remote, but they were blood relatives of the defendant, and the remoteness merely affected the weight and probative force of the evidence and not its competency. “It seems that such evidence is admissible in all cases, being of more or less weight according to the degree of relation *574 ship.” 14 R. C. L. § 70, p. 619. Nor can it be held that the defendant got the benefit of this proof in other respects. The trial court seems to have denied him all chance to show the insanity of- Mrs. Draper, and while one witness at one time was permitted to prove that he considered the uncle'as a person of unsound mind, most of the facts upon which this opinion was based were excluded. The record, produced by the witness Skeggs, may not have been the best evidence or conclusive as to the mental condition of the uncle W. C. Russell and the cousin Mrs. Draper, or binding upon them or their privies in estate, but their insanity in the present case was collateral and the facts offered were at least prima facie evidence that they were insane, in a proceeding which neither affected them nor their e'state. 14 R. C. L. § 73, p. ,621. The evidence offered here was more-specific than that considered in the case of James v. State, 193 Ala. 55, 69 South. 569.

The recent case of Todd v. Ward, 77 South. 731, 2 involved an inquisition of lunacy subsequent to the transaction involved, and like the case of Frederic v. Wilkins, 182 Ala. 343, 62 South. 518, cited and followed, involved a direct inquiry into the mental condition of the person involved- in the inquisition; 'but here the insanity of the uncle and cousin in the case at bar was collaterally involved as an evidential fact bearing upon the sanity of another who was undergoing investigation.

[4] Upon the trial of the issue of insanity much latitude is given both the state and defendant as to his acts, condition, and conduct, not only at the time of the offense, but prior and subsequent thereto. McAllister v. State, 17 Ala. 434, 52 Am. Dec. 180; McCurry v. Hooper, 12 Ala. 823, 46 Am. Dec. 280. We do not think that the trial court committed reversible error otherwise than as above noted in ruling upon the evidence.

[5] The books from which extracts were read to the jury are standard works, and the trial court did not err in permitting them introduced and read to the jury. Stoudenmeier v. Williamson, 29 Ala. 558; Bales v. State, 63 Ala. 30; Adler v. State, 55 Ala. 23.

[6] The oral charge as excepted to by the defendant was free from reversible error. Pritchard v. Fowler, 171 Ala. 662, 55 South. 147.

[7] We do not think that reversible error can be predicated upon the refusal of the trial court to exclude so much of the argument of counsel as was excepted to by the defendant.

[8] Charges 44 and 46, refused the defendant, assert a correct proposition, and should have been given. Turner v. State, 124 Ala. 59, 27 South. 272; Hunt v. State, 135 Ala. 1, 33 South. 329.

[9] The trial court also erred in refusing the defendant’s requested charge 54. Green v. State, 168 Ala. 104, 53 South. 284; Hale v. State, 122 Ala. 85, 26 South. 236; Phillips v. State, 156 Ala. 144, 47 South. 245. The refusal of said charges cannot be justified upon the idea that there was also a plea of not guilty by reason of insanity. Gilbert v. State, 172 Ala. 386, 56 South. 136; Odom v. State, 172 Ala. 383, 55 South. 820. Nor can the refusal of same be justified because covered by the oral charge or charges given for ihe defendant, as such was not the case. The other charges refused the defendant were either faulty or covered by the given charges or the oral charge of the court.

[10] It is true, as suggested in brief for the state, that the charges appear only in the bill of exceptions, and not in the record proper as required by the act of 1915, p. 815, but this court held in the case of Mobile Light Co. v. Thomas, 78 South. 399, 3 that, while they should more properly appear in the record than in the bill of exceptions, they will be reviewed if -presented either way. The writer was not in accord with this holding and dissented in said case, but the question was there settled, and a further dissent can serve no good purpose.

The judgment of the law and equity court is reversed, and the cause is remanded.

Reversed and remanded.

MAYFIELD, SOMERVILLE, and GARDNER, JJ., concur.

Notes

1

200 Ala. 345.

2

Ante, p. 205.

3

Ante, p. 493.