Carmichael v. State

• Decision Date: 13 April 1916
• Docket Number: 4 Div. 583
• Citation: 72 So. 405,197 Ala. 185
• Parties: CARMICHAEL v. STATE.
• Court: Alabama Supreme Court

72 So. 405

197 Ala. 185

CARMICHAEL v. STATE.

4 Div. 583

Supreme Court of Alabama

April 13, 1916

Rehearing Denied June 30, 1916

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Dan Carmichael was convicted of murder, and he appeals. Affirmed.

The facts and objections to evidence sufficiently appear from the opinion. The following charges were refused to defendant:

(1) The court charges the jury that all the necessary and material allegations of the indictment should be proven beyond a reasonable doubt, and, if the state has failed to do this, then defendant should not be convicted.

(2) The court charges the jury that malice is an ingredient of murder in the first degree, but such malice is not the malice imputed by the use of a deadly weapon.

(3) Malice as an ingredient in the offense of murder in the first degree is not implied malice, or that malice that is imputed in the law by the use of a deadly weapon.

E.H Hill and Espy & Farmer, all of Dothan, for appellant.

W.L Martin, Atty. Gen., and Lawrence E. Brown, Asst. Atty. Gen for the State.

SAYRE J.

Defendant was jointly indicted with his son David Carmichael for the murder of Horry Deshazo. A severance was ordered, and defendant alone was on trial. Defendant was convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for life.

Some minutes after receiving mortal wounds, deceased made a statement concerning the agency of defendant in their infliction and the attendant circumstances. The physician to whom the statement was made testified that deceased had requested that nothing be done for him but to ease him; that he be not moved; that he was going to die; that he would not live. Deceased, however, requested the witness to do what he could for him. Witness testified that deceased then made a statement as to how the shooting occurred. To quote the witness:

"He said he was in the grocery store telephoning, and that Dan Carmichael came in on him and shot him. I don't remember that he said which Carmichael it was that killed him."

There was no objection to this evidence. On cross-examination the witness stated that when he started to carry deceased to the infirmary he offered no protest, but did what he could to aid his removal. After deceased reached the infirmary, he said nothing more about dying, but asked for help. He asked the witness to ease him; asked the witness to give him medicine and to ease him. This was in substance the testimony of this witness as to the expressions of the deceased. This witness had, however, previously described the four wounds from which deceased suffered, and had stated his opinion that one of them was fatal. Previously, also, the wife of deceased had testified to a statement by deceased which appears to have been received without objection as a dying declaration. She testified that at her home, where deceased was when the physician first saw him, deceased had expressed no hope for living, but said he was going to die; said that he wanted relief; said that he was suffering death and wanted to die easy. On this status of the evidence, defendant moved the court to exclude the testimony of the physician witness as to the declaration of deceased in regard to the facts and circumstances of the shooting, on the ground that said testimony was illegal, immaterial, and irrelevant. The predicate for the admission of the declaration of deceased as a dying declaration was well laid (Gerald v. State, 128 Ala. 6, 29 So. 614, and case cited), and it is entirely clear that the evidence was both relevant and material. Appellant cites McHugh v. State, 31 Ala. 317; Mitchell v. State, 71 Ga. 128; and 4 Ency.Ev. 933. It was for the court to say whether the declarant had at the time sufficient mental capacity to make the declaration (Ency.Ev. 933), and it follows from the ruling made that the trial court found no sufficient reason for holding that the declarant was mentally incapable. The declaration being in rational and intelligible form, the fact that the declarant had been mortally wounded, suffered extreme pain, and was no doubt in a state of great physical collapse, was no sufficient reason for adjudging him to be mentally incapacitated. If these circumstances may have affected the credit of the declaration, that was a matter for the jury. The declaration in McHugh v. State was held inadmissible because it was shown that the declarant's mental capacity had been greatly impaired by sickness and he appeared to be in a stupor, in monosyllables and by nodding his head answering questions put to him by an attorney with a view to eliciting a statement for future use. The court held substantially that the statement obtained under these circumstances was more the statement of the attorney than of the deceased and should have been rejected. In Mitchell v. State, the court found on the evidence that the deceased was at no time in such a condition as to be able to give an intelligent account of the transaction or to enter into any detail, however general, of the attending circumstances. These cases, because of their evident and essential differences from the case in hand, have no effect on our judgment, which is that there was no error in overruling the motion to exclude.

The witness Ghent, who was a ticket agent for the railroad at Dothan, testified to a difficulty between deceased and David Carmichael at the station a few minutes before the killing. As explaining his presence at the place without the building from which he observed the difficulty, this witness was led by the prosecution to say that he was there looking for a negro porter. On cross-examination defendant proposed to show that the witness had an electric bell in his office with which to call negro porters. The witness may have had any number of good reasons for going out to look for the porter notwithstanding he had the bell at hand, and we are unable to see how the inquiry could have discredited or otherwise materially affected his testimony or the issues involved. The question might have been allowed under the general license of cross-examination, which is indulged for the reason that it is the most "efficacious means available for the exposure of artful fabrications of falsehood by witnesses in our courts of justice." Davis v. Hays, 89 Ala. 563, 8 So. 131. On the other hand, when extended to inquiries concerning remote collateral facts, it tends to excite and foment irrelevant and immaterial controversies, consuming the time of the court and distracting the attention of the jury. In respect of such matters, therefore, the court exercises, on grounds of public policy, a large measure of discretion. In the case made by this record no special reason for extending the cross-examination to the remote collateral fact inquired about appeared in either the testimony of the witness or the general atmosphere created by the contentions of the parties, and we are clear to the conclusion that there was no error in the trial court's exercise of its discretion in sustaining the state's objection.

Evidence for the state went to show that, immediately after the difficulty between deceased and David Carmichael about which Ghent and other witnesses testified, David went to the defendant in his place of business, a restaurant in the neighborhood, where he asked for a pistol, and told his father of the difficulty he had had with the deceased; that after a few minutes the two went together in the direction a store into which deceased had gone in the meantime; and that defendant there killed deceased by shooting him with a pistol under circumstances wholly lacking any element of legal justification or excuse. The state was all wed to ask a witness: "Now, when the Carmichaels--Dave and Dan Carmichael--came out of the restaurant and went down the sidewalk, in what position were Dave Carmichael's hands?" And the answer went to the jury: "One hand was in the waist of his sweater, and I don't remember where the other hand was." This evidence was either of no consequence utterly, in which case its admission or rejection was of no consequence, or it tended to show that David had a weapon. It is on the hypothesis that the jury may have inferred...