Carr v. State, 4 Div. 396.

• Decision Date: 07 March 1939
• Docket Number: 4 Div. 396.
• Citation: 187 So. 252,28 Ala.App. 466
• Parties: CARR v. STATE.
• Court: Alabama Court of Appeals

187 So. 252

28 Ala.App. 466

CARR v. STATE.

4 Div. 396.

Court of Appeals of Alabama

March 7, 1939

Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.

Florence Carr was convicted of manslaughter in the first degree, and he appeals.

Reversed and remanded.

Sollie & Sollie, of Ozark, for appellant.

Thos S. Lawson, Atty. Gen., and Noble J. Russell, Asst. Atty Gen., for the State.

SAMFORD Judge.

The defendant was indicted jointly with Denton Price, M. C. Hunt and Spurgeon Mooneyham; each charged with murder in the first degree, for the killing of one Jack Harder.

The defendant, Florence Carr, demanded a severance, and he alone was placed upon trial, and from the judgment of conviction takes this appeal.

The appellant filed a motion and a plea in abatement seeking to quash the indictment, setting forth four separate grounds. Subsequently, the defendant withdrew ground one, leaving grounds two, three, and four, to which the Solicitor interposed demurrers. These demurrers were sustained, and this action of the court is assigned as error.

The principal insistence of defendant, as set out in his plea in abatement, is that the Presiding Judge in his charge to the Grand Jury placed undue emphasis upon the conditions existing in that part of the County of Barbour where this crime is alleged to have been committed.

In charging a Grand Jury a very large discretion must be left to the trial judge, and it is within his prerogative to call attention to any unusual state, or condition, affecting the general welfare in the County, where the Grand Jury is charged with the investigation of all violations of the criminal law.

The Grand Jury is the inquisitorial body of the County, drawn and summoned from among its best citizens who, under the direction of the Presiding Judge, must make investigations of all violations of law, making presentments in accordance with such investigation to the court.

A very large discretion is conferred upon the Presiding Judge in respect to these things, and no appellate court will undertake to control it, unless such instructions refer directly to the crime being charged in the indictment and then on trial. Blau v. State, 82 Miss. 514, 34 So. 153.

The record in this case comprises 288 pages, consisting of many objections and exceptions to testimony, some of which are without merit, and some of which constitute error. The trial judge recognized erroneous rulings in a part of the testimony with regard to the character of the defendant, as appears in the record at the close of the testimony, where he says: "there is a part of the testimony with regard to the character of the defendant now that ought to be excluded * * * I'll give the jury the proper instructions." As to this evidence, it does not appear that it was ever specifically excluded by the trial judge. If it were necessary to a proper decision in this case, we would point out, in detail, the numerous errors incident to this testimony; and also, we would hold that it was injurious to the defendant's cause. However, as we view the evidence in this case, it will not be necessary to pass upon the numerous objections and exceptions to testimony taken on the trial.

The evidence in this case is very voluminous. Indeed, we may observe that it is unnecessarily so; furnishing details, long examinations, and cross-examinations, involving matters not at all in dispute.

Jack Harder, a young man about nineteen years of age, was found dead about sun-up on the morning of March 12, 1936, at a point about three-quarters of a mile south of the Bee Line Highway, on a narrow road leading from the main road near a negro church, and in Dale County, Alabama. His yellow Chevrolet Roadster automobile was standing near the body of deceased, with its lights on, door open, and with what appeared to be a bullet hole in the wind-shield in front of the steering wheel, and a mark or dent in the frame surrounding the glass in the back curtain.

The testimony as to the finding of the body, and the autopsy, was given in its minutest detail. All of which tended to prove that the young man, Jack Harder, had been killed; and that he did not die by his own hand.

Abruptly leaving the scene where the body of Harder was found, the State transferred its investigations to the home of this defendant in Barbour County, Alabama, near Elamville; about twelve miles from the place where the body was found. This testimony tended to show that at sometime between one o'clock and five o'clock in the morning on the 12th day of March, 1936, Harder had been at the house of this defendant engaged in a game of poker, and that he had been killed at, or near, the defendant's house; placed in the rumble seat of his automobile and driven to the point in Dale County, Alabama, where the body was found, and there left.

The insistence of the State depends upon the testimony of two witnesses, the principal one being a man by the name of Marvin Teal, and the other one a man by the name of M. D. Johnston.

Marvin Teal, by the unreasonableness of his story, the impeachment of his character by numerous witnesses living in his community, and by contradictory statements made to others, and the further proof by witnesses that he could not have been where he said he was on the occasion testified to by him, is shown to have been unworthy of belief. If these witnesses are to be believed, Marvin Teal is not only a man of bad character, but is truly untrustworthy.

The witness Johnston was also impeached by testimony tending to show that he could not have been at the place where he said he was on the occasion testified to by him; and, also, that he had been in...