Saulsberry v. State

59 So. 476 | Ala. | 1912

McCLELLAN, J.

The defendant (appellant) was convicted of the murder of Nicholas Shintzen. During the progress of the trial there were taken for the defendant 69 exceptions to the rulings of the court on the admission or rejection of evidence. At the conclusion' of the evidence, the defendant’s counsel requested the court to give to the jury 101 special charges. The court gave 79 of these special charges as requested for the defendant, and refused to give the remaining 22. The state requested, and the court gave, 10 special charges from that side of the bar. Whether any others were requested for the state does not appear.

The body of the deceased was found, in the early morning of July 21, 1911, under, or partially under, the elevated front of the house in which he alone lived. His head had been crushed by two or more blows with a blunt instrument. His head was nearly severed from his body. A pool of blood was nearby the steps to the door to his house, and this pool of blood was somewhat covered over with fine coal. There were spatters of blood on the side of the house and on the door thereto. An iron bolt rod, some 14 inches long, with a tap or taps screwed on one end, and as large as a broom handle, was found about the scene. On this was blood and, some said, hair. The body was clothed. The pockets contained no valuables. There were indications that the body had been dragged under the house. About the body, beneath the floor, were two tracks made by a man’s shoes in the earth. The body was unshod. The scene of the crime was Altoona, Etowah county, Ala.

That the corpus delicti was first fully proven is clear. Hence all those objections to testimony, on the ground that the corpus delicti had not been proven, were without merit.

The issue was whether the defendant was a guilty agent in the killing of Shintzen — otherwise called in the record “the old German.” The theory of the state was that defendant and one Wiley Goforth murdered him from mercenary motives. -There was no positive, direct evidence that they or either of them, committed the crime. The reliance to connect them therewith was, in part, circumstantial evidence. The evidence offered by the prosecution' was, if credited by the jury, sufficient to justify the conviction of this defendant. It was not possible under, the evidence to give the affirmative charge for the defendant.

The defendant denied his guilt, ana offered in support of his innocence his previous good character and some evidence tending to show that he was throughout the night during which the crime was committed not at the scene thereof.

For the prosecution there was testimony tending to show flight, by defendant and Goforth, to another state. They left Altoona the morning the body was found as stated. Whether their departure was flight promoted by a consciousness of guilt, or was but the pursuit of a plan, formed some weeks before then, as their testimony tended to show, to change their abode for business reasons, was a jury question under all the circumstances appearing in the evidence.

There was, on the trial, earnest objection by the defendant’s counsel to the admission of a number of inculpatory expressions by this defendant as well as the reception of secondary evidence of the contents of two notes alleged to have been written by defendant to Go-forth, who was then confined in a different part of the jail in which defendant was confined. Where expressions of the defendant were offered as affirmative evidence of the guilty connection of this defendant with the crime charged, the proper predicate was laid — they were shown to be voluntary within the familiar rule thereof. Such was the case with the gravely inculpatory statements which McCoy testified defendant made to him, as well as with respect to the like character of statements asserted to have been made by this defendant to other witnesses. Where other statements were offered by the prosecution in contradiction of the defendant as a witness in his own behalf, proper predicates were laid therefor, and the court affirmatively advised the jury of the limited purpose for which such evidence was admitted to their thus restricted consideration.

There Avas no error in any of the rulings of the classes to which reference is just made.

The state was allowed to introduce testimony to the effect that defendant and Goforth, at a ball game about 30 days before the tragedy, .discussed, in the presence of others, the “old German,” the amount of money he had, and a plan to get him into a crap game in Avhich he was riot skilled, and win his money. It was further shoAvn by one Davenport that, on the occasion just mentioned, defendant Avent off from the game, was gone aAvhile, and said, upon his return, that he could not find him that night; that there was “nothing doing;” would “see him later.” This witness also testified that Goforth said, “Dead men tell no tales.” It is not to be doubted from this record that the deceased was quite commonly referred to in that mining settlement as “the old German.” That allusion, if made by the defendant and Goforth on the occasion in question, Avas, clearly, to the man who then worked in the mine defendant did and Avho was later slain. The relevancy of this testimony otherwise is not open to question. If the motive for the crime Avas robbery, this testimony tended, immediately, to-show that defendant and Goforth had entertained and expressed ideas that consisted Avith the result. The statements Davenport testified to were not too remote for legitimate consideration of the identity of the criminal agent or agents effecting the old German’s death.

The court very properly permitted a minute inquiry into the conduct of deceased and of Goforth and defendant on the day previous to the killing and on the night it took place, and of that of defendant and Goforth on the morning after, and during their stay in Birmingham; the amounts of money drawn on pay day, the amount defendant expended at Altoona, Birmingham, and en route to Arkansas, and after their arrival there. If defendant had funds in excess of those he could account for, it was, of course, a circumstance bearing upon the issue in the premises.

All of the 69 exceptions reserved to rulings on the admission and rejection of evidence have been carefully considered, and we find no error in any of those rulings.

Charge A, refused to defendant, is, as this record recites it, confused in its terms. But, aside from that justification for its refusal, it was faulty under the reasoning of Shepperd v. State, 94 Ala. 102, 10 South. 663.

The following special charges refused to defendant were covered by special charges given for him: B, C, D, E, F, M, U, V.

Charge H was argumentative.

Charge G is unintelligible, as we have it. Its refusal was justified for that reason, if not others.

Charge I was the affirmative charge for defendant. As stated, it could not have been given.

Charge J would have incorrectly restricted defendant’s guilt to his presence at the scene of the crime at the time it was committed. Obviously, his guilt, under our law, may have been found under this evidence without his actual participation in the killing or without his actual presence at the scene thereof. Hence this charge, as well as those lettered N and Q, was well refused.

Charge L predicated an acquittal in consequence of a reasonable doubt arising out of the testimony of McCoy. A conviction of guilt, to the requisite degree, might have prevailed with the jury independent of McCoy’s testimony. The charge was well refused.

Charge 0 was properly refused. It exacted too high a degree of proof to justify a conviction.

Mills’ Case, 1 Ala. App. 76, 55 South. 331, cannot be taken as approving charge P, even though, as here drawn, it contained the word material. The charge is affirmatively bad. It is not the duty of the jury to disregard all of a witness’ testimony in consequence of the fact (if so) that the witness has been found by the jury to have sworn willfully falsely in respect of a fart, though' material in some aspects, of his testimony. Other evidence in the case may corroborate or tend tq confirm that fart of his testimony to which he is not found to have willfully falsely sworn. That the jury may disregard entirely the testimony of such a witness is, plainly, a very different matter from holding their duty to be to disregard all when only a part has been shown, to their satisfaction, to be willfully false.

Charge S exacted an acquittal if the jury were of such confused, uncertain mind that they could not say who killed the deceased. The question was the guilt or innocence of the defendant. It was not that propounded by the implication of the charge. In consequence, the tendency of the charge was to mislead the jury. Besides, the charge ignored the issue of conspiracy presented by the evidence in the case. Charge A, in Boyd’s Case, 150 Ala. 101; 43 South. 204, was, as appears, entirely different from the charge under review.

Charge T was, as suggested in brief for appellant, argumentative, and due to be refused.

Numerous charges touching the sufficiency or degree of conviction of guilt requisite to justify a verdict to that end were given at defendant’s request.

We find no error in the record. The judgment is affirmed.

Affirmed.

All the Justices concur.