White v. State

133 Ala. 122 | Ala. | 1901

HARALSON, J.

There was no error in overruling the defendant’s motion to quash the venire, based on the ground that the court had, without defendant’s consent, excused a juror whose name was on the list served on him for his trial. It is shown that no such ground existed. '

What the production of the bundle of clothing found at the house of Kimbrough, a co-defendant, not here on trial, had to do with the case is not made ¡to appear. The court, at the request of the solicitor, had the bundle produced, and it was laid where the jury could see it, but it does not.appear that the bundle was opened or its contents exhibited to the jury. No possible injury could have resulted to the defendant from what was done. — Code, § 4333. It may be presumed, the bundle was produced for its contents to be used, if in the progress of the trial, it was shown to be proper to- do so, which was not done.

Dir. Boyd was examined as a witness for the State, and testified that he had been practicing medicine for about two years, and was a county physician; that he had had considerable experience in examining blood spots, and had examined the defendant’s leggings with a low power lens; that he went with the coroner’s jury on the morning the dead woman was found, and was asked by the solicitor what he found on the defendant’s leggings. He answered, that he found some stains on them that looked like blood; that he made no microscopical examination of the stains, and could not swear positively that it was blood — could only swear that these stains looked like blood. The leggings were introduced in evidence by ¡the defendant. The defendant when said question was propounded to the witness, objected to it because it was not shown that the witness had the knowledge to qualify him to testify as an expert; that it was -not shown that he had made the proper examination to enable him to testify as to what was on defendant’s leggings, and because such testimony was immaterial and inadmissible, and he moved to exclude the answers on the same ground, but his objections were overruled. Whether he was an expert or not, and competent to express the opinion he did as to these stains, was a matter addressed to ¡the discretion of the court, and the province of the court to determine. He gave it as his opinion, based on his experience in examining blood spots, that they looked like the stains of blood. The force and value of tliis opinion, was open to be combatted by other proof, that the opinion was worthless, and its value was for the jury to determine, in connection with all the evidence. — Gulf c. Ins. Co. v. Stephens, 51 Ala. 123; Walker v. The State, 58 Ala. 393; L. & N. R. R. Co. v. Sandlin, 125 Ala. 591.

This witness was asked by the solicitor, if defendant .had made a statement ito him concerning the homicide; how and by whom it was done, and witness answered that-he had made such a -statement. Upon -objection by defendant to the witness making the statement to the jury, the court ordered the jury to retire, which -they did. The court then asked-the witness, if he had made any promise -or threats to -defendant- to induce him to make a statement, to which witness replied that he had not; that being county physician, he was at the jail to visit a -sick prisoner, and while there he saw defendant and inquired of him, how he was getting along, and how his troubles were serving him, and he replied, he was getting along very well; that he then asked him, what " made him do that, when defendant replied, that he was not guilty, did not kill the woman and did not have anything to do with it. Without more, he said, “I will tell you how it was,” and proceeded to make the statement which the witness detailed in court, such as is set out in the transcript, and which, upon return of the jury to the court room, the court allowed to he repeated to them by the witness as evidence in the cause.

This evidence, which tended to implicate defendant as a guilty party in the homicide, was properly admitted. The fact that he was under arrest, and that he made the statement to the witness in answer to a question that assumed his guilt, did not render it inadmissible as an admission or confession. — Carroll v. State, 23 Ala. 28; Redd v. State, 68 Ala. 492; Miller v. State, 40 Ala. 54; McQueen v. State, 94 Ala. 50.

The sixth charge was properly refused. In order to convict, the law does not require that there can be no other possible conclusion to be reached but that of defendant’s guilt. Reasonable doubt of guilt is all that can be required for an acquittal. — Scott v. State, 95 Ala. 20; Karr v. State, 106 Ala. 1.

Charge 11 was properly refused, when construed with reference ito the evidence. The tendencies of the evidence was, that the defendant and Florence Kimbrough acted in concert in effecting the degith of the deceased, and while Kimbrough may have struck the blow that killed her, that defendant was implicated in the matter and aided and abetted therein. — Pickens v. State, 115 Ala. 43, 51.

Charge 18 was improper. The confessed purpose of the charge was to refute some remarks of the solicitor in his closing argument; and it is not error in the court to refuse a charge having no other purpose than to respond [to or offset arguments made before the jury by the prosecuting officer. — Mitchell v. State, 129 Ala. 23.

Let the judgment and sentence below be affirmed.