Bachelor v. State

• Decision Date: 05 May 1927
• Docket Number: 5 Div. 976
• Citation: 216 Ala. 356,113 So. 67
• Parties: BACHELOR v. STATE.
• Court: Alabama Supreme Court

113 So. 67

216 Ala. 356

BACHELOR v. STATE.

5 Div. 976

Supreme Court of Alabama

May 5, 1927

Rehearing Denied June 4, 1927

Further Rehearing Denied June 11, 1927

Appeal from Circuit Court, Elmore County; George F. Smoot, Judge.

Clyde Reese Bachelor was convicted of murder in the first degree and he appeals. Judgment affirmed; remanded for sentence.

Anderson C.J., and Gardner, J., dissenting in part.

Criminal is charged with notice of law relative to sentence.

Defendant was charged with the killing of Lamar C. Smith, his father-in-law. The tendency of the state's evidence is that defendant procured Hayes Leonard, a negro tenant farmer to kill the deceased, the motive being that upon the death of deceased his daughter, defendant's wife, would inherit a portion of deceased's estate, and thus would defendant profit financially; that Leonard fired the fatal shot with a shotgun through a side window of deceased's residence, while deceased lay upon his bed reading; that defendant stood about 30 yards from Leonard when the shot was fired; that immediately afterwards defendant and Leonard escaped in defendant's automobile, going to defendant's plantation. The defendant's evidence was to the effect that defendant was of unsound mind at the time of the homicide.

Hasty Golden, a witness for the state, testified that he was sheriff of Elmore county and had, the day after the shooting, arrested defendant, Bachelor, and Hayes Leonard in connection with the shooting of deceased, and the two were carried to the Montgomery county jail. The witness was asked if Leonard had made any statement there, in the presence of the defendant, with reference to the shooting. Over defendant's objection, the witness replied in the affirmative, and further testified that there were 6 or 8 men present; that witness knew them all, but could not say whether he could call them all by name; that he knew that neither he nor any one in his presence offered any inducement to or made any threats against Leonard to make a statement; that some one of those present brought Bachelor down there to hear the negro make the statement. The witness further testified that Leonard stated that he shot deceased, and, being asked why, stated that he had done what the defendant told him to do, and that defendant was to pay him for doing it; that he (Leonard) and defendant had been to the house of deceased two or three times before; and that defendant was with him at the time of the shooting, "squatting down by the little peach tree." The witness further testified that Leonard demonstrated with a broom how the shooting had been done, "how he (Leonard) had walked along with the gun until he got on the porch, and how he raised the gun to shoot and his heart failed him; and he said he crawled back and told him (defendant) that there was not but one in the room, and defendant raised up and looked in the window and told him that both of them (deceased and his wife) were in there and when he did he went back and shot." The witness further testified that defendant left the room during the confession, but that he was present when the foregoing part of Leonard's confession was made; that defendant was asked if he wanted to hear what the negro had to say, and defendant said he did not care to argue with the negro.

Defendant's father testified that, in witness' opinion, defendant was of unsound mind, was a weakling; that one of his weaknesses from the time he was a child was that he would break down and cry whenever he talked business with or sought financial aid from witness; that "he has been a cry baby all his life, even when he was a man. It is not a fact that he didn't cry except when he didn't get what he wanted; he always got what he asked for."

In his closing argument to the jury, counsel for the state made, substantially, the following remarks to which the objections of defendant were sustained: "Two criminals in the city of Chicago caused the death of one Frank.

"If the defendant was found not guilty by reason of insanity, he would be sent to the insane asylum and turned loose in two or three years."

The following requested charges were refused to defendant:

"D. If you are reasonably satisfied from all the evidence that at the time of the commission of the alleged crime the defendant was mentally unsound, you cannot find him guilty.

"A. I charge you, gentlemen of the jury, that, if you find the defendant responsible, and further find him guilty of murder in the first degree, it becomes your further duty to fix his punishment. Capital punishment is authorized, but it is not commanded or compelled, whatever may be the enormity of the crime. It is not an absolute unconditional, but an alternative, punishment, and it is never imposed except at the discretion of the jury.

"B. I charge you, gentlemen of the jury, that if you find the defendant legally responsible, and further find him guilty of murder in the first degree, it becomes your further duty, under the law, to fix his punishment. In fixing such punishment you may either fix it at imprisonment in the penitentiary for life or at death, in your discretion. Under the law of the state, capital punishment is never visited except by a jury on their own responsibility, controlled only by their own conscience, and it is not contemplated that the suggestions of their conscience shall be directed by the judge presiding or by any human power.

"A-1. The court charges the jury that in the trial of a homicide case, where the plea of not guilty and a statutory plea pleaded not guilty by reason of insanity are both interposed, the burden of proof as to the first plea is upon the state to satisfy the jury beyond a reasonable doubt of the guilt of the defendant, but, as to the second plea, the burden of proof is on the defendant to establish the plea of not guilty by reasonable of insanity to the reasonable satisfaction of the jury by a preponderance of the evidence, and a reasonable doubt is not sufficient to acquit the defendant under this plea. The weight and sufficiency of the evidence as to the one plea is that the state must satisfy the jury beyond a reasonable doubt, whereas, as to the other plea, the defendant must reasonably satisfy the jury by a preponderance of the evidence."

Rushton, Crenshaw & Rushton, of Montgomery, and Oakley W. Melton, of Wetumpka, for appellant.

Charlie C. McCall, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty. Gen., and Holley & Milner, Tate & Renau and Huddleston & Glover, all of Wetumpka, for the State.

BROWN J.

To render the confession of Hayes Leonard, made to the witness Golden and others in the Montgomery county jail, admissible against the defendant, it was necessary for the state to show that it was made in the presence of the defendant, and that he remained silent or that he affirmed the truth of the statement, and that such affirmation was voluntarily made. Delaney v. State, 204 Ala. 685, 87 So. 183; Rowlan v. State, 14 Ala.App. 17, 70 So. 953; Everage v. State, 113 Ala. 102, 21 So. 404; Blair v. State, 211 Ala. 53, 99 So. 314; McGehee v. State, 171 Ala. 19, 55 So. 159; Whitehead v. State, 16 Ala.App. 427, 78 So. 467.

However, it was not necessary that it be shown that such affirmation of the truth of the confession was made at the same time and place, but if it was subsequently made and shown to be voluntary--that is, made when the mind of the accused was free from the influence of hope or fear excited by menace or encouragement that he would be more favorably dealt with if he confessed--this is all sufficient to authorize its admission in evidence. Banks v. State, 84 Ala. 431, 4 So. 382.

The court, sitting in banc, after careful consideration of the record is of the opinion that it clearly appears that so much of the alleged confession of Hayes Leonard as was given in evidence through the testimony of witness Hasty Golden was made in the presence of the defendant, and the defendant in a subsequent confession to the witness Sellers, shown to be voluntary, affirmed the truth of Leonard's confession in every material respect by stating:

"That everything this old darkie has said is true, with the exception of one thing, and that was this--when he went up on the porch to fire the fatal shot I was not standing right behind him with a pistol--that part is not true. I was there; I planned everything; I was 20 or 30 steps away when he fired the shot."

Under the rule heretofore stated, this evidence was properly admitted and the rulings of the court in this respect were free from error.

The state's objection to the question to the witness Bill Macon, "Was she crazy before she committed suicide?" referring to defendant's great-grandmother, was properly sustained. The witness had testified that he did not know the name of defendant's great-grandmother, that she died of suicide in about the year 1871. This, under the authorities, was not sufficient to qualify a non-expert witness to give his opinion that the person inquired about was "crazy." Parrish v. State, 139 Ala. 16, 36 So. 1012; Braham v. State, 143 Ala. 28, 38 So. 919; People v. Harris, 169 Cal. 53, 145 P. 520; 16 C.J. 752.

The same observation is true as to the questions to this witness in reference to the insanity of Roxie Williams, Mat Williams, and Reuben Smith. As to his acquaintance with Roxie Williams, the witness testified:

"I knew her mother, Roxie Williams, Roxie Williams is his great-great-great-grandmother."

As to Mat Williams:

"I knew this boy's great-aunt, the sister of his great-grandmother; she was called Aunt Mat

Williams. I don't know how long she has been dead. I knew her in her lifetime, but don't know how old she was when I knew her."

Reuben Smith was shown to be a brother of defendant's...