Mealer v. State

Decision Date14 May 1942
Docket Number6 Div. 865.
Citation8 So.2d 178,242 Ala. 682
PartiesMEALER v. STATE.
CourtAlabama Supreme Court

Geo. M. Van Tassel, of Tuscaloosa, for appellant.

Thos S. Lawson, Atty. Gen., and John O. Harris, Asst. Atty. Gen for the State.

FOSTER Justice.

This appellant was convicted of first degree murder of his wife Laura Mealer, on an indictment in five counts of which the third and fourth were nol prossed, leaving counts 1, 2 and 5. One charged that the killing was by beating her with his fists; two, by kicking her with his feet; and five, by means unknown to the grand jury. The trial and proceedings were all conducted pursuant to the requirements of the statute resulting in a verdict finding him guilty of murder in the first degree and fixing his punishment at death.

The defendant was represented by an attorney appointed by the court, who conducted the trial with apparent appreciation of his duty and of the rights of defendant and the rules and principles of law which govern such a trial. The indictment was returned and filed February 12, 1941. Defendant was first arraigned on March 4, and plead not guilty and not guilty by reason of insanity, and his trial set for March 12th. On that day the trial was continued. On April 2d, he was again arraigned, and again plead not guilty and not guilty by reason of insanity, and the trial set for April 9th, and a special jury was ordered and drawn as required by law. All the proceedings are set out and are regular, though no question was raised as to any of them.

The case was tried on April 9th, in which defendant withdrew his plea of not guilty by reason of insanity. The trial resulted as we have stated, and defendant was duly adjudged guilty and sentenced to death in the electric chair as provided by law.

Certain contentions are made by his counsel, which we will discuss. We have carefully examined the record, and find nothing prejudicial apart from those matters thus argued by counsel.

The first contention made is based on objections to the evidence of State's witnesses on rebuttal, after defendant had testified, that the general character of defendant was bad. Defendant had not sought to show his good character. There was no effort to extend proof of character beyond that of general bad character, without specifying any special bad quality of it. Appellant insists that this was erroneous since defendant had not put in issue his character. There was no effort made to have this evidence limited in its effect for the impeachment of defendant as a witness, nor to have it made available for other purposes. Its effect as evidence was not in any manner referred to insofar as the record shows.

We have many cases holding that such evidence is admissible to impeach a defendant on trial who has testified as a witness, just as it may be used to impeach any other witness in the case. The court cannot be held to a reversible error for not so instructing the jury in the absence of a request to that effect. For impeachment purposes, the evidence of bad character need not extend beyond that of general character, but may be extended to include character for truth and veracity, if either the State or defendant wishes to do so. Cooley v. State, 233 Ala. 407, 171 So. 725; Baugh v. State, 215 Ala. 619, 112 So. 157; Gast v. State, 232 Ala. 307(9), 167 So. 554. Many earlier cases are cited in them.

There was no ruling of the court which was prejudicial to appellant in this connection.

Under proposition No. 6 appellant's counsel argues that there was error in respect to a statement made by the State's witness A. C. Wright that defendant "seemed mad." This was at the house of defendant on Monday before his wife died Friday, there being evidence from which it could be inferred that she had been beaten up and was moaning at that time. Aside from the fact that no ruling was made or sought in respect to such evidence it was not illegal on any ground. Carney v. State, 79 Ala. 14; Thornton v. State, 113 Ala. 43, 21 So. 356, 59 Am.St.Rep. 97; Kubicek v. Slezak, 119 Neb. 542, 230 N.W. 248, 69 A.L.R. 1168; 20 Amer.Jur. 692, section 823.

Appellant's proposition No. 10 relates to an alleged dying declaration, a part of which was that "Paul (defendant) made me lie like a dog on my death bed when I said he did not beat me." In his presence and at his instance she had previously told this witness "He did not do it." The contention here made is that by such declaration she is expressing an opinion on the basis of what is said in White v. State, 24 Ala.App. 442, 136 So. 420. In that case the declaration was said to express an opinion of the declarant as to his chances to defend himself. We need not here express any view upon the question of whether in that case the declaration was subject to objection on that ground. The statement of the witness in the instant case did not violate the principle of opinion evidence. It was merely an expression of emphasis, "like a dog." Compare cases cited in 30 Corpus Juris 274-5.

Appellant's proposition No. 11. This relates to a motion for a new trial. The chief feature of this motion, other than the contentions to which we have referred, is the claim of insanity. As we have shown, defendant was first arraigned March 4th, with appointed counsel to defend him, when a plea of not guilty by reason of insanity was interposed along with one of not guilty. The same proceeding occurred on April 2d, when his trial was set for April 9th, and on that day his plea of insanity was withdrawn. In support of the motion, the attorney for defendant made affidavit that defendant's father, who resides in Mississippi, and is a man seventy-five years of age, called on him prior to the trial date and th...

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13 cases
  • Adams v. State
    • United States
    • Alabama Court of Appeals
    • April 22, 1947
    ...character of the accused without restricting the inquiry to his reputation for truth and veracity. Gast v. State, supra; Mealer v. State, 242 Ala. 682, 8 So.2d 178; Rogers v. State, 16 Ala.App. 58, 75 So. Walling v. State, 15 Ala.App. 275, 73 So. 216. 'Proposition V 'The use of an excessive......
  • Sparks v. State
    • United States
    • Alabama Court of Appeals
    • March 3, 1953
    ...testified in his own behalf, his credibility was subject to impeachment by evidence that his general character was bad. Mealer v. State, 242 Ala. 682, 8 So.2d 178; Pendley v. State, 34 Ala.App. 453, 41 So.2d In response to a question in this aspect one of the witnesses, instead of answering......
  • Stemple v. State
    • United States
    • Alabama Court of Criminal Appeals
    • November 15, 1977
    ...that evidence. Evidence is not newly discovered where the accused knew of it but did not mention it to his counsel. Mealer v. State, 242 Ala. 682, 8 So.2d 178 (1942); Cox v. State,19 Ala.App. 557, 98 So. 915 We have carefully reviewed the evidence presented on the motion for new trial and f......
  • Mayo v. State
    • United States
    • Alabama Court of Appeals
    • February 5, 1946
    ... ... weak,' 'appeared to be very weak,' 'appeared ... to be healthy,' 'the appearance of the defendant was ... 'very angry," 'seemed to be very feeble,' ... 'appeared to be hurt' or 'nervous,' ... 'looked excited,' 'looked like a [drunken] ... man.' Mealer v. State, 242 Ala. 682, 8 So.2d ... 178; Birmingham Ry. & E. Co. v. Franscomb, 124 Ala. 621, ... 27 So. 508, 509; American Nat. Ins. Co. v. Rains, ... 215 Ala. 378, 110 So. 606; Long v. Seigel, 177 Ala ... 338, 58 So. 380; Dilburn v. L. & N. R. R. Co., 156 Ala ... 228, 47 So. 210, 214; ... ...
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