Blackburn v. State
| Decision Date | 30 June 1928 |
| Docket Number | 7 Div. 472 |
| Citation | 117 So. 614,22 Ala.App. 561 |
| Parties | BLACKBURN v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.
Ernest Blackburn was convicted of murder in the second degree, and he appeals. Reversed and remanded.
Hugh Reed, of Centre, and Hood & Murphree, of Gadsden, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
The killing took place in a building which was being used as a post office. The defendant was the assistant postmaster, and the deceased was a mail carrier. Both were in their place of business.
One Hoyt Butler, who was an undertaker, and who examined the wounds on deceased, was qualified as an expert as to pistol wounds, and, after describing the wounds, the size, entrance and exits, he was asked:
"I will ask you, if the parties had been standing apart the party with the gun or pistol, and Mr. Lowe had been on his knee, could that wound have been inflicted that way in his head?"
This question was objected to by defendant, objection was overruled, and motion made to exclude the answer. Exceptions were duly reserved. A witness cannot give his expert opinion as to the relative attitude of deceased to the instrument or person inflicting the fatal wound. This is an inference to be drawn from the facts, and is for the jury. Dumas v State, 159 Ala. 42, 49 So. 224, 133 Am.St.Rep. 17; McKee v. State, 82 Ala. 32, 2 So. 451.
The killing took place in a storehouse which was being used as a post office. The deceased was shot twice with a pistol in the hands of defendant. One of the wounds was in the head, and the deceased fell on the floor of the storehouse where he was shot. Over the objection and exceptions of defendant, the state was allowed to offer testimony tending to prove that after the difficulty, and after the body of deceased had been removed from the place where it fell, defendant took some sand, poured it over the brains of deceased lying on the floor, stirred it around with his foot, then took it up in a shovel, and threw it out in a lot across the street belonging to deceased. The court should not have permitted this line of inquiry. The act of defendant, if true, was not a part of the res gestae, shed no light upon any material inquiry, and was but the presentation of an unsightly and gruesome spectacle calculated to prejudice the jury. Boyette v. State, 215 Ala. 472, 110 So. 812.
The...
To continue reading
Request your trial
-
Roan v. State
... ... Thaggard v ... Vafes, 218 Ala. 609, 612, 119 So. 647; Rohn v ... State, 186 Ala. 5, 65 So. 42; Landham v. Lloyd, ... 223 Ala. 487, 136 So. 815; Dumas v. State, 159 Ala ... 42, 49 So. 224, 133 Am. St. Rep. 17; McKee v. State, ... 82 Ala. 32, 2 So. 451; Blackburn v. State, 22 Ala ... App. 561, 117 So. 614 ... The ... bill of exceptions recites: ... "The ... Solicitor for the State then asked the witness: ... "I ... will ask you if in your judgment as a physician, based ... upon the examination you made on the body of the ... ...
-
State v. Heisler
...or the defendant at time of homicide, might with propriety have been excluded. See Rogers on Expert Testimony (3d Ed.) 531; Blackburn v. State, 22 Ala.App. 561; 117 So. 614; Keifer v. State, 199 Ind. 10, 154 N.W. 870. But, see, Commonwealth v. Dorr, 216 Mass. 314, 103 N.E. 902, and Miera v.......
-
Lovejoy v. State
... ... In short, such testimony would be invasive of the ... province of the jury. McKee v. State, 82 Ala. 32, 2 ... So. 451; Mathis v. State, 15 Ala.App. 245, 73 So ... 122; Humber v. State, 19 Ala.App. 451, 99 So. 68; ... Dumas v. State, 159 Ala. 42, 49 So. 224, 133 ... Am.St.Rep. 17; Blackburn v. State, 22 Ala.App. 561, ... 117 So. 614 ... The ... question is here posed: Was this rule violated in permitting ... the witness to answer, 'The hole in the back was made ... from going in'? ... In the ... Mathis case, supra, [15 Ala.App. 245, 73 So. 124], this court ... ...
-
Edwardson v. State
...question for the jury. Landham v. Lloyd, 223 Ala. 487, 489, 136 So. 815; Roan v. State, 225 Ala. 428, 432, 143 So. 454; Blackburn v. State, 22 Ala.App. 561, 117 So. 614; Crotwell v. Cowan, 236 Ala. 578, 184 So. 195; Louisville & Nashville R. R. Co. v. Manning, Ala., 50 So.2d The court, ther......