Griffith v. State

Decision Date29 January 1891
Citation8 So. 812,90 Ala. 583
PartiesGRIFFITH v. STATE.
CourtAlabama Supreme Court

Appeal from circuit court, Madison county; H. C. SPEAKE, Judge.

Indictment for murder containing two counts, each charging the defendants, George Griffith, John Robertson, and Martha Miller, with the murder of two infant children, whose names were to the grand jury unknown; the first count charging that they were murdered "by taking them from the house, and leaving them exposed in the woods, whereby they died;" and the second charge, "by leaving them in the woods whereby they died from starvation." Each count alleged that the names of the infants were unknown to the grand jury and contained no descriptive or identifying words; and the second count alleged that they were killed unlawfully, and with malice "aforethou," instead of "aforethought." Defendant demurred to each count of the indictment, because it charged two distinct offenses, and because the infants were not sufficiently described or identified; and specially to the second count, because it did not allege that the offense was committed with malice afore thought. The court overruled the demurrer, and the defendant then moved the court that the prosecution be compelled to elect on which count it would proceed; and he renewed this motion after the evidence was closed, duly excepting to its refusal. A severance having been granted, and George Griffith being on trial alone, he pleaded not guilty, but was convicted of murder in the second degree, and sentenced to the penitentiary for the term of 12 years. On the trial, the state introduced evidence showing that in May, 1890, the dead bodies of two infant children, about two weeks old, were found under an oak tree near Trinity Church, in Madison county, wrapped up in an old shawl, and exhibiting no marks of violence; and that they were the illegitimate children (twins) of Dee Griffith, who was a step-daughter of the defendant, and who lived with him at Fayetteville, Tenn. Dee Griffith testified, on the part of the state, that in April 1890, the defendant carried her in a buggy from Fayetteville "to go to his brother's, in Madison county, Ala where she expected to remain until after her confinement; but they stopped at the house of one Jordan Richardson, where she remained until after her confinement, giving birth to twins,-a boy and a girl; that the effect of poison-oak in her system broke out on her afterwards, and her milk began to disagree with the children; that after talking the matter over with Martha Miller, the mid wife, and her step-father they concluded it would be best to get a wet-nurse for them; that when the children were about two weeks old her step-father came to the house with John Robertson, and proposed to give the children to him, saying that he had a sister living near Huntsville, who would nurse them; and that defendant, with John Robertson and Martha Miller, took the children, and carried them off." The witness admitted that the defendant had given her a bottle of medicine to cause an abortion, and was then asked by the solicitor if the defendant had not threatened to smother the child if it should be born alive, to which she answered in the negative. The solicitor then asked her, "Did you not tell me in the room there, yesterday, that the defendant had told you, before the baby was born, that he intended to smother it?" and she answered, "You asked if that was the truth, and I never made any answer." The defendant objected to this question and answer, each on the ground that it was an attempt by the state to impeach its own witness; and he excepted to the overruling of his objection. The defendant asked said witness "if Martha Miller did not tell her that the babies were in a bad fix, but would get well if they could get good breast-milk;" also, "that Martha Miller said, as they were leaving with the children, that Robertson would carry them to his sister's." The court sustained objections to each part of this evidence, and the defendant duly excepted. The defendant also offered to prove by witnesses that, several days before the babies were carried off, Martha Miller advised said Dee Griffith to send them away, and advised it on the day they were sent off; and he duly excepted to the court refusing to allow him to make such proof. John Robertson, for the state, testified that defendant "had offered him $25 to take the children away; gave him $4 on the morning they were taken away, and told him to take them away, but never told him to kill them;" that the defendant went with him and Martha Miller, when the children were carried away, as far as Martha Miller's house, where he left them; that Martha Miller then fed them, and gave them to him, with a bottle of milk for them, and went with him some distance to a point out on the Huntsville road; that he took the children from her, wandered about until late in the evening, trying to find a place where he might leave them, and finally laid them down under the tree where they were found; and, further, that defendant, on leaving him at Martha Miller's house, told him, "Take the children, and do away with them." The defendant requested the following, with other, charges, in writing: "(1) The second count in the indictment does not charge murder in the first degree." "(3) Before the jury can convict George Griffith to their entire satisfaction, and beyond a reasonable doubt, they must find that he had the criminal intent to murder these infants, and had agreed or conspired with John Robertson to actually kill them, before they were left to die of exposure or starvation." "(6) If the defendant did not himself actually leave the infants to be exposed or starved, then he cannot be convicted unless he counseled, incited, or aided and abetted another to so leave them; and the jury cannot conclude that he did so counsel, incite, or aid and abet another to do the act except upon clear and distinct proof of it. (7) If the defendant did not himself actually leave the infants to be exposed or starved, then he cannot be convicted unless he counseled or incited another to so leave them; and the jury cannot conclude that he did so counsel and incite another to do the act except upon clear and distinct proof of it. (8) The gravamen of the offense charged is the killing of two infants by leaving them exposed in the woods, whereby they died of exposure or starvation; and unless the defendant...

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    • United States
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