Nichols v. State

Citation100 So.2d 750,267 Ala. 217
Decision Date23 January 1958
Docket Number4 Div. 929
CourtSupreme Court of Alabama
PartiesLucile M. NICHOLS v. The STATE of Alabama.

Alto V. Lee, III, and Dwight L. McInish, Dothan, and Chas. O. Stokes, Ozark, for appellant.

John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., for the State.

MERRILL, Justice.

Lucile M. Nichols was indicted for murder in the first degree, being charged with the murder of her husband, Ralph W. Nichols; and upon trial, she was convicted of murder in the second degree and punishment was fixed by the trial jury at imprisonment in the penitentiary for a period of thirty years. The appellant's motion for a new trial was denied. Hereafter, the appellant, Lucile M. Nichols, will be referred to as the defendant.

The evidence shows that on the afternoon of 31st of December, 1956, the defendant shot the deceased in their bedroom in Dothan, Alabama. Several city policemen, the sheriff and certain deputies went to the Nichols' home. When the officers arrived at the home of the defendant, they found the defendant, her daughter Rhoda, and Benjamin Chalker, who has since married Rhoda. The body of the deceased was in the bedroom. The defendant was crying and wringing her hands. One officer testified that defendant stated: 'Lord have mercy, I didn't mean to kill him * * * I love him.' This same officer testified that defendant stated also: 'If I couldn't have him, no one else could.'

At the time of the shooting only the deceased, the defendant, daughter Rhoda and Benjamin Chalker were in the house. Chalker testified that on the afternoon of the 31st of December, 1956, at about four or four-thirty, he saw the deceased, Ralph W. Nichols; that they (he and the deceased) were talking in the kitchen of the Nichols' home; that the telephone rang and Nichols answered it; that he heard him say: 'All right, all right, you get your own lawyer,' slammed the phone down, appeared mad and left in his car; that he returned in about five minutes with Mrs. Nichols; that he and Rhoda went into the den; that he heard deceased and Mrs. Nichols arguing in their bedroom and heard the word 'divorce;' that it wasn't long before he heard some shots.

The defendant interposed pleas of not guilty, not guilty by reason of self-defense, and not guilty by reason of insanity.

The defendant's daughter, Rhoda, gave the only evidence in support of the plea of self-defense. Rhoda testified that after her mother and father returned home on the afternoon of the 31st of December, witness went into the den of their home; that from her seat in the den, she could see the bedroom where her mother and father were; that the door to the bedroom was partially open and that she saw her father rush at her mother; that she turned her head to Benjamin, who was sitting on the sofa, and then heard shots. There is other evidence in the record which shows that Rhoda told the investigating officers, her grandfather and grandmother that the door to the bedroom was closed and that she did not see anything. Further, that she and Benjamin were sitting on the settee or sofa at the time of the shooting. State's exhibit 7 shows that the bedroom could not be seen from the said sofa or settee. The record reveals that Benjamin Chalker made similar remarks about the door being closed and not being able to see the bedroom. It is undisputed that in Dothan 'it was common gossip all over town about her husband (Nichols) carrying on' with a woman who lived in Marianna, Florida. On Saturday before the killing occurred on Monday, the defendant was informed that her husband was in the apartment of one Joy Draughon in Marianna. The defendant, her daughter Rhoda, and Chalker drove to Marianna in Chalker's automobile and that afternoon in the company of a Marianna policeman, they found Nichols asleep on a couch in the Draughon woman's apartment. He was intoxicated and had his shoes off. He left the apartment with them and after the departure of the policeman, rode around with them in Chalker's car. During that ride, he agreed that he would not contest a divorce in favor of the defendant. He was put out of the car in front of the Draughon woman's apartment and the defendant, Rhoda and Chalker drove back to Dothan. The defendant went to see her pastor, then drove to Enterprise to talk with Nichols' parents, came back to Dothan and borrowed the pistol with which she shot deceased four times on Monday afternoon. The evidence affords the inference--although the defendant contends to the contrary--that deceased was first shot in the back, and then shot in the face, neck and chest while falling or while on the floor.

The defendant insists that many errors are contained in the record. We proceed to examine her contentions and number them for convenience.

I. Remarks of the Trial Court

The State planned to use the sheriff as a witness because the sheriff was one of the investigating officers who went to the scene soon after the shooting happened. The solicitor asked the court to excuse the sheriff from the rule. The attorney for the defendant objected on the ground that it would be prejudicial to the rights of the defendant. The court then made the following statement:

'I don't think I agree with the attorney for the defendant. I don't think the Sheriff of our County would let anything influence him in the giving of his testimony except his conscience.'

The court then excused the sheriff from the rule and defendant excepted to his ruling. We have held that where witnesses are placed under the rule, it is discretionary with the presiding judge to permit exceptions to its enforcement. Webb v. State, 100 Ala. 47, 14 So. 865; McDowell v. State, 238 Ala. 101, 189 So 183; Smarr v. State, 260 Ala. 30, 68 So.2d 6. The defendant contends that the court's remark concerning the sheriff was a comment on his credibility and, therefore, reversible. The attorney for the defendant did not except to the court's statement nor did he move the court to instruct the jury to disregard the statement. As we read the record, counsel for defendant agreed with the court's remark about the sheriff. It was on his motion for a new trial that defendant first asserted that the trial court erred in making the statement. We think the remarks of a trial judge come within the same rules as improper argument or remarks of counsel. The general rule is that improper argument of counsel (or improper remarks from the court) is not a ground for a new trial or subject of review on appeal unless there is due objection by counsel or a motion to exclude, a ruling thereon by the court and an excepton thereto, or a refusal of the court to make a ruling. Washington v. State, 259 Ala. 104, 65 So.2d 704; Anderson v. State, 209 Ala. 36, 95 So. 171.

An exception to this general rule, requiring appropriate objection or motion invoking corrective instruction or acion by the trial court, is where the remark or argument of counsel (or court) is so grossly improper and highly prejudicial to the opposing party as that neither retraction nor rebuke by the trial court would have destroyed its sinister influence. Anderson v. State, 209 Ala. 36, 95 So. 171.

In Phillips v. Beene, 16 Ala. 720, this court held "It cannot be seriously contended that every expression of opinion by the court, during the progress of the trial, if erroneous, shall furnish ground for reversal. But such opinion must, in some manner, influence the result of the cause, or be supposed to do so, by being given in charge to the jury, or by a refusal to charge, or by being connected with the exclusion or admission of evidence."

Parker v. City of Birmingham, 36 Ala.App. 234, 56 So.2d 348. See also, Fiorella v. City of Birmingham, 35 Ala.App. 384, 48 So.2d 761, certiorari denied 254 Ala. 515, 48 So.2d 768, where it was held that the court's statement concerning a witness did not tend to bolster the testimony of that witness.

The remark of the trial court relative to the sheriff should more properly have been left unsaid, but we cannot say that it was highly prejudicial to the rights of the defendant. As already pointed out, there was no objection to it; also the testimony of the sheriff was merely cumulative. If the testimony of the sheriff be obliterated, the evidence remains the same, and is established by several other witnesses. It should also be borne in mind that the sheriff was not on the stand or beginning to testify at the time the remark was made. No witness had been examined and the record does not affirmatively show that the remark was made in the hearing of the jury. Phillips v. Beene, supra. We cannot say it constituted reversible error.

The next remark of the trial court argued as being error was when he said, 'I think the whole thing is silly.' The State introduced the undertaker Hall who removed the deceased's body to the funeral home. He testified that with the exception of nine ounces of embalming fluid being injected into his veins, there was no change in the body of the deceased from the time it was removed from the scene of the shooting until the autopsy was performed.

The solicitor asked the undertaker the following question:

'From your experience, over ten years experience and observation and working around dead human bodies, is it your opinion that wounds, their condition, their range and all, are not changed by the injection of embalming fluid and drawing of the blood from the dead bodies?'

Over objection of the defendant, the undertaker was allowed to answer in the negative. On cross-examination, counsel for defendant brought out that the undertaker was not qualified to answer the question. The court then made the following remark:

'I think the whole thing is silly. You have got witnesses to testify where the bullet entered and where it came out and putting an injection or a little fluid in the veins or arteries certainly wouldn't change the direction--let me take that back--I...

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    • United States
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    ...remarks by the trial court are objected to the remarks are not subject to review except where they are grossly improper. Nichols v. State, 267 Ala. 217, 100 So.2d 750; Dolvin v. State, 51 Ala.App. 540, 287 So.2d 250 (1973). There must be either an objection, a motion to exclude, or a motion......
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