Booth v. State, 6 Div. 337.

• Decision Date: 07 March 1946
• Docket Number: 6 Div. 337.
• Citation: 25 So.2d 427,247 Ala. 600
• Parties: BOOTH v. STATE.
• Court: Alabama Supreme Court

25 So.2d 427

247 Ala. 600

BOOTH v. STATE.

6 Div. 337.

Supreme Court of Alabama

March 7, 1946

Rehearing Denied April 11, 1946.

Beddow Ray & Jones, of Birmingham, for appellant.

Wm N. McQueen, Atty. Gen., and Clarence M. Small, Asst. Atty Gen., for the State.

Counsel for defendant reserved exceptions to the oral charge as follows:

'I want to reserve an exception here to this statement that, 'I am not going to charge the jury on manslaughter in the first degree.''

'Second, 'There is no evidence in this case to rebut the presumption of malice.''

The following charges were refused to defendant:

'5. I charge you that the evidence in this case is entirely circumstantial and before the jury would be authorized to convict the defendant, the evidence must be so cogent as to exclude every reasonable hypothesis except that of the guilt of the defendant.'

'10. If the jury is reasonably satisfied from the evidence that Addie Ruth Booth came to her death by some method unknown to the jury, but without any guilty agency on the part of the defendant, then it is not the duty of the defendant to prove the agency that brought about her death. Such burden rests on the State of Alabama, and if the jury have a reasonable doubt growing out of the evidence or the want of evidence that the State has met the burden of proof required by law, then you should acquit the defendant.'

GARDNER, Chief Justice.

This appeal is from a conviction of murder in the second degree with punishment fixed at imprisonment for a period of twenty-five years.

Defendant is charged with the murder of his daughter, Addie Ruth Booth a young girl near fourteen years of age, who was well developed and rather large for her age. She lived with her father in a house at Kimberly, Alabama, and not far from Warrior. On the night of Wednesday, October 25, 1944, about nine o'clock she was brought to Hillman Hospital and carried to the emergency ward. The defendant, her father, accompanied her in the ambulance from his home to the hospital. She was suffering from a gunshot wound which entered her body just below the chest bone, the bullet ranging downward at an angle of seventy-five degrees. This gunshot was from a .22 caliber rifle which had been sawed off, both at the barrel and stock, so that it resembled a large pistol. For convenience it will be referred to as a pistol.

After she had been at the hospital some two hours, and at eleven o'clock that night, in the presence of some half dozen persons, including two of the physicians, a supervisor, a detective and deputy sheriff, the girl made a statement to the effect that her father shot her in the chest with a pistol. She had been told by the resident physician that she was in a serious condition and would probably die from that wound. To use the language of the physician: 'I made that clear to her in front of the other witnesses there.' The statement Addie Ruth made was in the presence of these witnesses and was taken down by one of them as she talked--'they were asking questions and wrote down the answers.' Upon completion of the statement which was read back to her, she signed it in the presence of these witnesses, and they likewise affixed their signatures as witnesses. This statement was offered in evidence and reads as follows:

'My name is Addie Ruth Booth. I am 14 years of age and live with my father J. W. Booth at Kimberly, Ala. My mother is dead. My father works for City Transfer Company in Bham. On Monday morning October 23rd I was with Pearl and Bonnie Morgan and Robert Booth in an automobile accident. Wednesday morning about 1:30 my father came into the room where I was sleeping. He whipped me while I was in bed. He had just come in from work. He was standing at my head and shot me in the chest with a pistol. My father dressed the wound and did not call the doctor. My grandmother came over to the house and called Dr. Ballard this morning. He did not examine me. My father threatened to kill me if I told that he shot me. He was about 10 ft. from me when he shot me. The pistol was hanging up on the wall in his room. I realize that I am in a dying condition and that I have been told that I am in a dying condition. He beat me with a belt. No one was there but my father and I. This statement is given voluntarily in the presence of these witnesses this the 25th day of October 1944 at 11:00 p. m.

'Addie Ruth Booth.'

The foregoing statement was admitted in evidence over defendant's strenuous objection. As has been often observed, no hard and fast general rule can be laid down to control the admissibility of dying declarations. The circumstances of each case must be considered--the condition of the person as well as what he says in regard to approaching dissolution. In Parker v. State, 165 Ala. 1, 51 So. 260, 262, the following excerpt from Professor Wigmore on this subject was quoted with approval:

'No rule can be laid down. The circumstances of each case will show whether the requisite consciousness existed; and it is a poor policy to distrub the ruling of the trial judge upon the meaning of these circumstances.'

Nor is it necessary to admissibility that the declarant should state in so many words that he is in extremis, that there is no hope of life, and that death is imminent. Just so the judicial mind is fairly convinced by legally sufficient evidence, after a careful consideration of all the circumstances, that at the time such declarations were made such was the conviction of the deceased. Illustrative is the expression of the declarant in Marshall v. State, 219 Ala. 83, 121 So. 72, 63 A.L.R. 560; 'She has got me'; as well as other illustrations found cited in that authority. Likewise quite a number are noted in Shikles v. State, 31 Ala.App. 423, 18 So.2d 412, certiorari denied 245 Ala. 641, 18 So.2d 417.

As observed in the Shikles case, supra, the admissibility of the declaration is not to be controlled by the length of the interval between the declaration and death, but by the declarant's state of mind and his conviction that death is imminent. This observation is applicable here in view of the fact that Addie Ruth Booth did not die until a few days after making this declaration, her death occurring at 1:30 a. m. Sunday, October 29th.

Considering the testimony of the resident physician that he had told this girl that she was in a serious condition and would probably die and her positive declaration that she was in a dying condition and had been so told, we are persuaded the court committed no error in admitting this declaration over defendant's objection.

Of course, the dying declaration of a decedent as evidence is subject to impeachment in the same manner and for the same causes for which the testimony of a witness given on the stand may be impeached. Marshall v. State, supra; 40 C.J.S., Homicide, § 305, p. 1285. The defendant sought to impeach the declarant, and offered some witnesses who testified to her bad character for truth and veracity, and that they would not believe her on oath.

There was offered in evidence a sweater with powder burns around a hole, presumably made by this bullet wound. The expert stated that this pistol, to have produced the powder burns, must have been as close as two feet, while in the dying declaration the declarant has stated that her father was standing some ten feet from her. There was also testimony indicating that she had not been in an automobile wreck, as the declaration states. But all of these matters were proper for the jury's consideration as to the weight to be given the declaration.

There were charges given for the defendant calling attention to the matter of contradiction and impeachment of the declarant. Defendant, however, insists that the court was in error in refusing Charge 22, which reads as follows:

'If you are reasonably satisfied from the evidence that the alleged dying declarations of Addie Ruth Booth are false, in any material portion of said declarations, then you may disregard said dying declarations entirely.'

This charge is defective, however, in that the word 'willfully' is omitted. To justify the jury in entirely disregarding the testimony of the witness, they must have found that the material portions of said declaration were willfully false. Such is the holding of our authorities. Prater v. State, 107 Ala. 26, 18 So. 238; Tindall v. Guy, 243 Ala. 535, 10 So.2d 862; and Keef v. State, 7 Ala.App. 15, 60 So. 963.

In Refused Charge 7 is the positive statement that defendant is presumed innocent as a matter of law and that this presumption of innocence is an evidentiary fact which remains with the defendant throughout the trial of the case. Though there is a contrariety of opinion among the authorities (22 C.J.S., Criminal Law, § 581, p. 896), yet our own decisions are to the effect that this presumption does not necessarily attend the defendant throughout the whole trial, but only until it is overturned by evidence which convinces the jury of guilt beyond a reasonable doubt. Waters v. State, 117 Ala. 108, 22 So. 490; McClain v. State, 182 Ala. 67, 62 So. 241; Osborn v. State, 30 Ala.App. 386, 6 So.2d 461. There was, therefore, no error in the refusal of Charge 7.

Undisputedly, the deceased met her death as the result of a pistol shot wound. The pistol was, of course, a deadly weapon. It is well understood the jury may infer malice from the use of a deadly weapon alone unless the evidence which proves the killing rebuts the presumption. As stated in Compton v. State, 110 Ala. 24, 20 So. 119, 122:

'When the facts which prove the killing do not rebut the presumption, which the law raises, the burden is on the defendant by other evidence to rebut it, and failing to meet this burden, the presumption of the law...