Berry v. State

Decision Date19 December 1935
Docket Number1 Div. 900
PartiesBERRY v. STATE.
CourtAlabama Supreme Court

Rehearing Denied Jan. 23, 1936

Appeal from Circuit Court, Washington County; T.J. Bedsole, Judge.

Wesley Berry was convicted of murder in the first degree, and he appeals.


Granade & Granade, of Chatom, for appellant.

A.A Carmichael, Atty. Gen., for the State.

KNIGHT Justice.

The appellant, Wesley Berry, was indicted by the grand jury of Washington county, at the second or fall term of said court in 1933, for the offense of murder in the first degree. On his trial for said offense he was convicted by the jury of murder in the highest degree, and his punishment fixed at imprisonment in the penitentiary for life. Upon this verdict the defendant was duly sentenced by the court to imprisonment in the penitentiary of this state for the term of his natural life, and he appeals.

The record proper is in all respects regular, showing due organization of the court, indictment in proper form, duly returned into court by the grand jury, proper arraignment setting of a day for the trial of the case, drawing and summoning of a special venire, and due service of said venire and of a copy of the indictment upon the defendant, in all respects as required by law. We find no errors upon the record proper.

The indictment charges that the defendant, along with four other named persons, unlawfully and with malice aforethought killed Abe Baxter. In the first count, it charges that the killing was accomplished by shooting the deceased with a gun; while in the second count, it is charged that the weapon used was a piece of wood.

It is first insisted by the appellant that the evidence wholly failed to establish the corpus delicti, and that, therefore, the defendant could not be convicted.

We have read and carefully considered the evidence, and are fully persuaded that the evidence offered by the state was sufficient to warrant the jury in reaching the conclusion that the said Abe Baxter was dead, and that he came to his death, in Washington county, Ala., from gunshot wounds, or from blows upon his head, unlawfully inflicted by one or more persons. This, therefore, disposes of one of the major contentions here made by appellant.

A number of exceptions were reserved by the defendant on the admission and exclusion of evidence. Each exception has been considered by us, and we are of the opinion that, in this respect, the rulings of the trial court were free from error. Many of these exceptions were based upon the idea that the state had failed to produce sufficient evidence to establish the corpus delicti. Our conclusion that, in this contention, the appellant is in error, necessarily disposes of such exceptions adversely to the appellant.

So far as objections made to the introduction in evidence of statements alleged to have been made by the defendant while in jail, or in the custody of the officers, the bill of exceptions shows that, in each instance, the requisite proof was made to the court, before admitting the statement showing that the statements were voluntary, and were not superinduced by threats, offers of reward, or by any kind of inducements held out to him. This evidence was sufficient to render the incriminatory statements, if in fact they were incriminatory, admissible. There was no error, therefore, in such rulings of the court.

It is insisted that the court committed error in not allowing the defendant to ask Eugene Mizelle, jointly indicted with the defendant, and a confessed accomplice in the crime, and who had testified for the state, a number of questions, to show that this witness for the state had testified because of inducements held out to him by the solicitor. This testimony was sought to be introduced to enable the jury to properly determine the weight they should give to the evidence of the witness.

While it may be that the court should have allowed the defendant to ask one or more of the questions with reference to the "low bond" allowed the witness, yet we are of the opinion that the defendant was not prejudiced thereby, as the bill of exceptions shows the court did allow defendant to prove that he was allowed a "low bond," with the approval of the solicitor. We think this was sufficient to serve the purposes for which the testimony was offered.

We are persuaded that this fully met the purposes in the mind of the attorney for the defendant, for it appears that the court then stated to counsel for defendant: "The court gives the defendant the opportunity to ask him (the witness) if any inducement was offered for his testifying or if he was offered a low bail for his testifying." The bill of exceptions then immediately recites that "defendant refused to be directed or led by the court," and reserved an exception.

There was manifestly no error on the part of the court in sustaining objections of the state to the several questions propounded by defendant to his witness Nollie Mizelle, in an effort to show that the state's witness Eugene Mizelle was of unsound mind. The witness was not an expert on mental diseases, and the questions were patently subject to the objections interposed. Dominick v. Randolph, 124 Ala. 557, 27 So. 481; Burney v. Torrey, 100 Ala. 157, 172, 14 So. 685, 46 Am.St.Rep. 33; Vaughn v. Vaughn, 217 Ala. 364, 116 So. 427; Wear v. Wear, 200 Ala. 345, 76 So. 111.

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  • Burns v. State
    • United States
    • Supreme Court of Alabama
    • June 15, 1944
    ......State, 18 Ala.App. 616, 93. So. 207; Cheatwood v. State, 22 Ala.App. 165, 113. So. 482; Tidwell v. State, 23 Ala.App. 409, 126 So. 186; Newsum v. State, 10 Ala.App. 124, 65 So. 87;. Gilbert v. State, 18 Ala.App. 393, 92 So. 522;. Smith v. State, 230 Ala. 413, 161 So. 538; Berry. v. State, 231 Ala. 437, 165 So. 97; Skumro v. State, 234 Ala. 4, 170 So. 776; Bailey v. State, [246 Ala. 146] 30 Ala.App. 374, 8 So.2d 202,. cert. den. 242 Ala. 673, 8 So.2d 207. . . III. After the motion to quash the venire was overruled,. defendant's counsel filed a ......
  • Holloway v. State
    • United States
    • Alabama Court of Appeals
    • December 2, 1952
    ...requires this endorsement, without which the appellate courts are not authorized to review the propriety of its refusal. Berry v. State, 231 Ala. 437, 165 So. 97; Kiker v. State, 233 Ala. 448, 172 So. 290; Garrett v. State, 35 Ala.App. 141, 44 So.2d 260; Kincey v. State, Ala.App., 55 So.2d ......
  • Skumro v. State
    • United States
    • Supreme Court of Alabama
    • November 19, 1936
    ...... appeals. . . Affirmed. . . Whether. witness is accomplice may be question of law for court or a. fact for jury. Code 1923, § 5635. [170 So. 777] . . The. appellant was jointly indicted with Wash Daily, Wes Berry,. Eugene Mizelle, and Nollie Mizelle for the murder of Abe. Baxter. A severance was granted, and on his separate trial. appellant was found guilty of murder in the second degree. . . Eugene. Mizelle, as a witness for the state, testified substantially. as follows:. . . ......
  • Leonard v. State, 6 Div. 169
    • United States
    • Alabama Court of Appeals
    • November 22, 1966 remains in limbo as no evidence at all. Thus, in cases such as Doss, supra, Smith v. State, 230 Ala. 413, 161 So. 538, Berry v. State, 231 Ala. 437, 165 So. 97, Skumro v. State, 234 Ala. 4, 170 So. 776, Slayton v. State, 234 Ala. 1, 173 So. 642, Burns v. State, 246 Ala. 135, 19 So.2d 450......
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