32 So. 2d 233 | Ala. | 1946
Guy Stallings was convicted of murder in the second degree. On appeal to the Court of Appeals the judgment of the trial court was affirmed.
Certiorari was awarded by this court on petition filed by the State to review the opinion of the Court of Appeals rendered on rehearing. Supreme Court Rule 44, as amended November 21, 1942, Code 1940, Tit. 7 Appendix.
It is clear from the opinion of the Court of Appeals that that court concluded that the defendant's motion for a new trial should have been granted. But as to the reason why it was so concluded the opinion is not clear. As we understand the opinion, the reason for such conclusion must be ascertained from the first and last paragraphs of the opinion. The first paragraph is as follows: "Upon further consideration of all *3 the facts in this case, and also the unusual and prejudicial manner in which the prosecution was conducted, we have reached the conclusion, and so hold, that error prevailed in the action of the court in overruling and denying defendant's motion for a new trial." The last paragraph reads as follows: "Without prolonging this discussion, we reiterate, from the facts of this case and the conduct of the trial aforesaid, we are clear to the conclusion that error prevailed in the action of the court in overruling and denying defendant's motion for a new trial."
Among the statutory grounds for a new trial provided by § 276, Title 7, Code of 1940, are the following: "Irregularity in the proceedings of the court, jury, or prevailing party, or any order of court, or abuse of discretion, by which the party was prevented from having a fair trial" and "that the verdict or decision is not sustained by the great preponderance of the evidence, or is contrary to law."
If the paragraphs of the opinion of the Court of Appeals quoted above are to be construed as a finding by that court that the verdict was not sustained by the great preponderance of the evidence we cannot, under the uniform decisions of this court, review or revise such finding. Rainey v. State,
The case of Furst et al. v. Shows,
In the instant case we are not merely confronted with the question of the use by the Court of Appeals of terminology different from that used in the statute and in the opinions, but are here concerned with the necessity of determining whether or not the language used by that court evidences an intent to hold in effect that the verdict was not sustained by the great preponderance of the evidence. As above stated, we do not think the language used by the Court of Appeals can reasonably be said to disclose such an intent. *4
We are of the opinion that the reasonable construction to be placed on the first and last paragraphs of the opinion of the Court of Appeals is that the court concluded that in view of all the facts in the case the defendant did not have a fair trial or that the verdict failed to do justice, and that one of the dominating factors which influenced the court in reaching such a conclusion was that the prosecution was conducted in an unusual and prejudicial manner.
The opinion of the Court of Appeals shows that the principal reason why it concluded that the prosecution was conducted in an unusual and prejudicial manner was the testimony of the State witness, Dr. C. J. Rehling, who testified as an expert about matters "which related solely to an undisputed fact, and about which there was no controversy."
While the rule has been frequently referred to by this court that, upon certiorari to the Court of Appeals to review its rulings, this court will not review the facts for the purpose of revising the application of same to the law by the Court of Appeals (Postal Tel. Cable Co. v. Minderhout,
The opinion of the Court of Appeals sets out the material portion of the testimony of State witness Rehling, but does not purport to set out all of the testimony in the case. Hence the finding by the Court of Appeals that the testimony of Dr. Rehling, including that set out in the opinion, "related solely to an undisputed fact, and about which there was no controversy," is not subject to review by this court.
As we understand the opinion of the Court of Appeals, that court's objection to the testimony of Dr. Rehling is based solely on the fact that he testified as an expert as to matters about which there was no dispute. That Dr. Rehling was properly qualified to testify as an expert is not questioned nor is the relevance or materiality of his testimony challenged.
We are called upon, therefore, to pass upon this question: Is the Court of Appeals correct in holding that the trial was conducted in an unusual and prejudicial manner because the State was permitted to introduce in evidence expert testimony of a cumulative nature or as to facts admitted?
In the case of Weems v. State,
"The witness, Brooks, was also shown to have had extensive experience as a photographer, in taking and developing pictures (photographs). He made some pictures at the funeral parlor the next day of that portion of the deceased's body where the bullet wounds appeared. These photographs tended to corroborate and elucidate his oral testimony regarding the wounds. He testified that these pictures accurately portrayed the wounds on the body. Their admission in evidence was proper.
"If the photographs had a reasonable tendency to prove or disprove some material fact in issue, or shed some light upon some material inquiry, they were admissible even though they also might have tended to inflame the minds of the jury. Grissett v. State,
"The same principle governs the introduction of clothes worn by the deceased when killed. Grissett case, supra.
"If such proffered evidence (clothing or photographs) shows the location of the bullet holes, it is held to be relevant 'as shedding light upon the character and location of the wound(s) on the body, though it was merely cumulative evidence, and there was no dispute. It was a circumstance, material, if cumulative. The admission of cumulative evidence, even upon a fact not disputed, is not prejudicial error.' Weems v. State,
"Under the rule of the foregoing authorities, then, the photographs were relevant and, even though portraying a gruesome spectacle, were admissible." — Wilson v. State, supra, pages 24-25 of 31 Ala.App., 11 So.2d 565.
In view of the foregoing authorities, we are of the opinion that the Court of Appeals erred in holding that the testimony of Dr. Rehling was prejudicial to the defendant because of its cumulative nature. The construction which we have placed on the first and last paragraphs of the opinion of the Court of Appeals, as before stated, is that the defendant did not have a fair trial or that the verdict failed to do justice, and that one of the principal factors which influenced the court in reaching that conclusion was that the prosecution was conducted in an unusual and prejudicial manner because of the introduction by the State of the testimony of Dr. Rehling. Since we do not agree with the Court of Appeals as to the prejudicial nature of the testimony of Dr. Rehling, we are of the opinion that the judgment of the Court of Appeals should be reversed and the cause remanded to that court for further consideration in view of the conclusion which we have reached as to the testimony of State witness, Dr. C. J. Rehling.
The judgment of the Court of Appeals is reversed and the cause remanded to that court.
Reversed and remanded.
All the Justices concur.