Braham v. State

Decision Date19 January 1905
Citation143 Ala. 28,38 So. 919
CourtAlabama Supreme Court

Appeal from Criminal Court, Jefferson County; Daniel A. Greene Judge.

Jud Braham was convicted of murder in the first degree, and appeals. Affirmed.

In selecting the jury each juror was examined on his voir dire but the court neglected on such examination to inquire as to any relationship of the juror to the defendant or to the deceased. Each juror on the panel was accepted by the solicitor and by the defendant. After the jury was impaneled the defendant for the first time made objection to the failure of the court to make such examination, filing a motion to quash the panel on that ground. The court then of its own motion, and against the objection of the defendant examined as a witness one Jake Jones, showing by such witness that both the defendant and the deceased were negroes. The court also then offered to question the jury singly and as a whole as to such relationship, but the defendant objected thereto, and thereupon his motion to quash the panel was overruled. Thereupon the state introduced evidence showing that shortly before the killing the deceased and defendant were walking together, talking in an amicable manner; that defendant called the attention of the deceased to a passing railroad train, and, as she turned her head to observe it, he shot her in the back of the head with a pistol; that on her falling the defendant fired three other shots into her body which caused her death. One of the witnesses for the state--Mrs. C. S. LeCrane--testified that the killing was in an open common. This witness was asked by the defense whether she thought the defendant and deceased were white or colored people when they passed her. Objection to the question by the state was sustained. Another witness--Bart George--against objections of defendant, testified that he saw the defendant in the jail about an hour after the killing; that no one made any threats, promises, or inducements to defendant while witness was there. The defendant there said that he killed the deceased because he loved her. He said that he had made up his mind, if she did not marry him, he would kill her, and that he killed her because he loved her. He said that when he walked out he gave her the gun, and asked her to shoot him but that she would not do it, and he then shot her. He asked an officer to see that she was buried nicely, and that he had $35 belonging to her, which he wanted turned over to her people. He stated that he and deceased were in Birmingham the day before, and he would have killed her then if he had had a pistol. On cross-examination this witness testified that when he saw defendant in jail he was talking and laughing and crying at the same time. He said he did not wish to put the state to expense, and if they would appoint a day he would come back and be hung. The place where the killing occured was not in an open, but in a pine thicket. Jake Jones was called as a witness for the state, and defendant objected to his examination on the ground that witnesses in the case had been placed under the rule, but, notwithstanding this, the said Jake Jones had remained in the courtroom during the examination of previous witnesses. It appeared that at the request of the solicitor, the court had suspended the rule so far as this witness was concerned. The objection of the defendant was overruled, and the witness allowed to testify. Other matters on examination of this witness sufficiently appear in the opinion. On examination of Douglas Crenshaw the state produced a pocketbook, found in possession of the defendant when he was arrested, and the witness was asked if he knew whose pocketbook it was. He said he did. Being asked to whom it belonged, he answered that it belonged to Minnie Crenshaw, the deceased. The defendant excepted separately and severally to the questions, and moved separately to exclude the answers. His exceptions and motions were overruled, and on this action of the court assignments of error numbered 12 and 13 were based. The testimony of E. R. Norman, for the state, is sufficiently shown in the opinion. On examination of Ophelia Holdness, mother of defendant, and a witness for him, she was asked by the defense to state whether the defendant came to see his brother because such brother had lost his mind. The state objected to the question, and the objection was sustained. Dr. Hagler was examined as an expert witness for the defense. On his examination the defense asked him: "Will neuralgia in the parent likely manifest itself in the offspring in the form of a tendency to insanity, and does not every experienced physician know that a case of violent neuralgia, which occurs from time to time in an obscure way, without any discoverable morbid cause, that he may predicate the existence of insanity in the family with also as great confidence as if the patient were actually insane?" The court sustained objection by the state to the question. The witness was further asked by the defense, "Is it not a fact that violent neuralgia in the parent often manifests itself in the offspring in the shape of insanity?" Objection of the state to this question was also sustained. The further testimony of this witness is sufficiently shown by the opinion. Bob Franklin, a witness for the state, testified that he knew the defendant. Being asked "whether or not during the time you knew him he appeared to be of sound mind," he answered that he did. The defendant objected to question and answer, stating no grounds. N. J. Moore, for the state, testified that defendant went to school to witness for eight or nine years. He was asked by the state, "How often did you see him during that time?" The defendant objected, stating no grounds. The objection was overruled. Witness E. Knight, for the state, was asked by the solicitor, "Did you have frequent occasion to see the defendant, observe his conduct and language?" The defense objected generally to the question, which objection was overruled. Carrie Jones, for the state, was asked by the solicitor if she observed anything in the conduct, appearance or demeanor of the defendant which was peculiar or unusual, to which general objection was made by defendant, and objection overruled. Dr. McAdory, an expert witness introduced by the state, was asked by the solicitor: "If a young man should be deeply in love with a young woman, who declined to marry him, and he should take her out walking, and attract her attention to a train, and while she was looking at the train shoot her, and, when arrested, say that he killed her; that he loved her, and ought to be punished; that he told a number of persons that he killed her because he loved her, and knew he ought to be hung; that he sent for and talked with a newspaper reporter, telling him about the same thing; that he appeared cool and collected; that a short while after he sent for another person he had already talked to, and told him he had changed his mind about being punished, and that he was going to put up a defense--would you say that person was sane or insane?" To this question the defense objected on the grounds set out in the opinion. The objection being overruled, the witness answered, "Either a sane or an insane man might do that." Further testimony and objection thereto on examination of this witness are sufficiently shown by the opinion.

The testimony being closed, the court, in its general charge directed the jury, among other things, as follows: "Insanity is a mental disease. It does not mean eccentricity or peculiar action of the brain; it means a departure caused by a disease of the brain. Mere temporary mania does not constitute insanity." Also the court charged the jury as follows: "The jury should be careful that it [meaning insanity] is not used as a means to evade the law, as well as to see to it that a person irresponsible should not be punished." The defendant asked the following written charges, and, on each being refused, duly excepted to the action of the court: "(1) If, from all the evidence, the jury have a reasonable doubt as to the sanity or insanity of the defendant at the time of the killing, then they should find the defendant not guilty by reason of insanity. (2) Gentlemen of the jury, I charge you that in considering the statement made to Sandy Pettus, a witness for the state, by the defendant, you should consider as throwing light on the weight to be accorded to these statements of the defendant the testimony of the witnesses that he was a person of unsound mind. (3) Gentlemen of the jury, I charge you that in considering the testimony of the witness Sandy Pettus as to the statements of the defendant while in jail as to his being engaged to the deceased, and her breaking it off, and his other conversation there at that time, that you should consider in connection therewith the testimony of witnesses that he was of unsound mind. (4) To warrant a conviction in this case, I charge you, gentlemen of the jury, that it is incumbent on the state to establish by evidence to the satisfaction of the jury beyond a reasonable doubt the existence of every element necessary to constitute the crime charged; and if the jury, after considering all the evidence bearing on the question of the insanity, entertain a reasonable doubt of the defendant's sanity at the time of the alleged offense, they should give him the benefit of that doubt, and find him not guilty by reason of insanity. (5) Gentlemen of the jury, I charge you that in considering the statement of the defendant to Sandy Pettus while he was in jail, in substance that he was engaged to deceased, and that she broke off the engagement at the request of her parents, and that he asked her if she would marry any one else, and ...

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