Brooks v. State
| Decision Date | 23 January 1947 |
| Docket Number | 5 Div. 420. |
| Citation | 248 Ala. 628,29 So.2d 4 |
| Court | Alabama Supreme Court |
| Parties | BROOKS v. STATE. |
R C. Wallace, of LaFayette, for appellant.
Wm. N. McQueen, Atty. Gen., and John O. Harris Asst. Atty. Gen., for the State.
On cross-examination of State's witness Sims, who testified that he had been in deceased's family eight years, he was asked:
'I will ask you if during that eight years if he had not been suffering with the disease called diabetes?'
The solicitor objected to the question and the court sustained the objection, stating, 'I don't see where that is admissible.' Counsel for defendant reserved an exception and stated:
'If the Court please, it is our insistence that if he was suffering with a serious disease that could have been the cause of death instead of the gun shot.'
Thereupon the Court replied:
The defendant was convicted of murder in the first degree and received the death penalty. A similar conviction on the same indictment at a former trial was set aside by the trial court for some error not apparent from the present record.
We have carefully examined the evidence and are convinced that it was sufficient to take the case to the jury and warrant the verdict returned. The rule is settled that the corpus delicti may be established by circumstantial evidence and need not be proved by direct or positive testimony. Ala.Dig Criminal Law, k563.
While no one saw the actual shooting, witnesses heard the report of the gun and immediately thereafter saw the defendant standing about three feet from the doorway of the deceased's bedroom with shotgun in hand. The deceased, in his nightclothes, was standing by the door and bleeding, with shot wounds visible on his body. There were blood and particles of flesh over the room, including the ceiling. No one else appears to have been present when the shooting occurred. The defendant's wife, who had evidently fled from him and, to escape, had hidden in a closet of the room, was later found there by the witnesses who immediately appeared on the scene after hearing the report of the gun. The inference--in fact, the only reasonable inference deducible from these facts and circumstances--was that the defendant fired the shot which killed the deceased.
Likewise, the circumstances strongly indicated that the deceased was shot unawares, while in his bed, and the jury was authorized to draw such an inference, thus disentitling the defendant to the affirmative instruction on the murder charge. Where the evidence is of a substantial nature or furnishes reasonable inferences, tending to prove the material issues in the case, the affirmative charge should not be given. Hargrove v. State, 147 Ala. 97, 41 So. 972, 119 Am.St.Rep. 60, 10 Ann.Cas. 1126; Blue v. State, 246 Ala. 73, 19 So.2d 11.
The conviction is challenged as erroneous because one person listed on the special venire failed to appear and the defendant objected to going on trial in his absence. We have a statute which answers this contention. The venireman had not been excused from appearing and, whether summoned or not, his failure to appear was no ground for a continuance or for quashing the venire. Code 1940, Title 30, § 67.
During the cross-examination of a State's witness, the court first refused to allow the defendant to prove that the deceased was afflicted with diabetes. Later, however, this ruling was changed and the defendant was permitted to freely cross-examine this witness, and another, as well, on the proposition, after which in his general oral charge the court properly charged the jury on the apposite principles of law as respects the criminal liability of another for feloniously inflicting wounds causing death, etc. For pertinent authorities, see Ala.Dig., Homicide, k5, 175.
Counsel for appellant argues that the comment of the court (appearing in the report of the case), when the first ruling was made refusing the defendant permission to so cross-examine the State's witness, was erroneous and so prejudicial as to render ineradicable the injury to the defendant, but we are persuaded that this position cannot be sustained by the record. The remarks were mere reasons given for the ruling and it is clear to us that if this initial ruling was error--which we do not decide--it was fully cured by the later ruling and charge of the court. Ala.Dig., Appeal and Error, k1058(2).
The defendant fled and was apprehended in a foreign state about six years subsequent to the alleged crime. After arrest and while in custody of the officers, he made some inculpatory statements in the nature of a confession with reference to the shooting. These statements were proven to have been voluntary and the circumstances of their rendition indicated as much. Though defendant was a...
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