Deloney v. State, 8 Div. 339.

CourtSupreme Court of Alabama
Citation142 So. 432,225 Ala. 65
Docket Number8 Div. 339.
PartiesDELONEY v. STATE.
Decision Date26 May 1932

Appeal from Circuit Court, Lauderdale County; J. Fred. Johnson, Jr. Judge.

Rush Deloney was convicted of murder in the first degree, and he appeals.

Affirmed.

The refusal of requested instructions covered by those given held not error.

Witness Patterson testified that he had talked with deceased immediately before she was shot. He was asked by the solicitor: "Did this girl have the appearance of having had some drinks there at the time, did she appear to be drunk at any time while you were sitting there talking to her before the killing?" Defendant's objection to the question was overruled, and witness answered, "No, Sir."

The solicitor propounded this question to witness Patsy McKinney "I will ask you if on that ride defendant asked you girls to go with him to Leighton?" Defendant's objection was overruled, and witness answered: "Yes, Sir." She was then asked: "Well how far did you go, I mean toward Leighton?" Over objection witness answered. "Not so far ***" She was further asked: "Did Eloise then, when he made this statement about going to Leighton, say it was all right with her if it was all right with you?" Over objection she answered: "Yes, sir."

The following charges were refused to defendant:

"5. I charge you, gentlemen of the jury, that all crime implies some degree of intelligence, in the criminal, but the humanity of the law will not sanction the punishment of a person incapable of rational action."
"25. If a reasonable supposition abides with you after considering all the evidence you should find the defendant not guilty."
"33. I charge you, gentlemen of the jury that you must find the defendant not guilty if the conduct of the defendant upon a reasonable hypothesis is consistent with her innocence."

C. P. Almon, of Florence, and A. H. Carmichael, of Tuscumbia, for appellant.

Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.

THOMAS J.

The defendant was convicted of murder in the first degree, and his punishment fixed at a term of life imprisonment.

The organization of the court as shown by the transcript was in conformity to law and Supreme Court Rule 26 (Code 1923, vol. 4, p. 887).

The indictment is in Code form and is sufficient. Section 4556, form 76, Code 1923; Jinright v. State, 220 Ala. 268, 125 So. 606; Jones v. State, 136 Ala. 118, 123, 34 So. 236; Elam v. State, 25 Ala. 53; Boon v. State, 69 Ala. 226; Walker v. State, 150 Ala. 88, 43 So. 188; Noles v. State, 24 Ala. 672; Sanders v. State, 2 Ala. App. 13, 56 So. 69; Sullivan v. State, 23 Ala. App. 464, 465, 127 So. 256.

The judgment entry shows the presence of the defendant and his counsel at all the proceedings from the arraignment through the judgment and sentence, and suspension thereof pending his appeal (Frost v. State [Ala. Sup.] 142 So. 427); shows the proper order for a special venire, for service of a copy thereof, and for service of a copy of the indictment upon the defendant as required by law.

The pleas filed at his arraignment and trial were "not guilty" and "not guilty by reason of insanity," as duly shown by the judgment entry. Sections 4572, 4573, Code; Baker v. State, 209 Ala. 142, 95 So. 467; Morrell v. State, 136 Ala. 44, 34 So. 208.

The defendant was convicted of murder in the first degree for having killed one Eloise Smith, on the night of January 20, 1931, and was sentenced to the penitentiary for a term of his natural life. There is no dispute as to who killed the deceased. The defendant admits the shooting, but says that he is not responsible for his acts as he was insane at the time of the commission of that crime.

The evidence for the state shows that the deceased was an inmate of a "house"; that defendant was a married man whose home was in another town near by; that defendant had been associating with the deceased for some time, met her at this house, drove about town with her, returned to said house after she had suggested they go to defendant's home town and drive around, to which he demurred and finally declined; that he had been with the deceased for several hours, returned to the house, and after being with her for a time, started to leave, when deceased objected and the defendant deliberately and without provocation shot her several times while she was sitting in a chair and he was standing in the doorway.

The defendant's version of the affair is not greatly different from that of the state's except that defendant's evidence tends to show that the deceased was "running after the defendant" and threatened to take him from his wife; that on the night of the homicide, deceased took his car keys, hat, and coat to prevent his leaving her room. The defense is rested largely on the question of his sanity. Several physicians, none of whom were shown to be alienists, testified to the defendant's somewhat impaired physical condition and to the fact that he had "spells." Several of his neighbors testified as to the particularly peculiar and abnormal actions or traits of the defendant upon which they based their conclusions that there were times when he was insane.

The court was not in error in sustaining the state's objection to the question propounded to defendant as to the number of children he had. However, although the objection was sustained, the question was answered and the answer thereto was not excluded. This was immaterial and irrelevant. Code 1928, p. 1935, Supreme Court Rule 45; Henderson v. Tennessee Coal, Iron & Ry. Co., 190 Ala. 126, 129, 67 So. 414; 1 Enc. Dig. 289; 13 Enc. Dig. 78.

The court correctly excluded the answer of defendant on cross-examination, "I was crazy as a loon," on the ground that it was not responsive to the question asked, "Was your head aching?" Mims v. State, 23 Ala. App. 94, 95, 121 So. 446. An answer not responsive to the question is properly excluded. Jones v. State, 156 Ala. 175, 47 So. 100. Moreover, it was an improper conclusion of the witness as to the issue of fact being tried, and for the jury. Miller v. Whittington, 202 Ala. 406, 80 So. 499; Councill v. Mayhew, 172 Ala. 295, 55 So. 314; Dulaney v. Burns, 218 Ala. 493, 119 So. 21.

The court excluded without error the statement made by Dr. Wright, a witness for the defendant, that, "In my opinion his brain was diseased," for that the witness was permitted to answer, without objection: "My observation and opinion is that he had a tumor on the brain." The doctor testified that he was a practicing physician; that he had been practicing about eighteen months; that he had been through the books; that he was a graduate of the Universities of Alabama and Tennessee and had studied the make-up of the brain and its parts and functions; that he attended defendant one time and found a contused condition. The effect of his testimony was that in his opinion defendant had a brain tumor, and that he thought he was suffering from acute indigestion; that this one time he administered to him at 3 o'clock in the morning.

The court properly excluded the answer of defendant's witness Mrs. Spangler: "Defendant is not like other people." This answer was not responsive to this question: "Would you say from what you have said that defendant is a sane or an insane man?" For this reason the answer was properly excluded on motion. The witness did not state the peculiarities on which her observation and opinion were based. However, witness was permitted to answer: "In my opinion defendant is not sane at all times."

The court was correct in sustaining the solicitor's objection to the question propounded to Dr. Greer: "Now what things have you noticed about defendant that would indicate a difference from normalcy or irrational conduct?" That witness had testified: "During the time I am talking about I don't think defendant was normal. I am not an insanity expert, but I have studied the books on the subject. It is rather difficult to define insanity. In some types it is easy to define and easily discovered." And was then asked the question set out above. After the court had sustained the objection, Dr. Greer was permitted to testify as follows:

"The question was then asked by defendant's counsel: 'What things have you seen him do, doctor and what things have you known and observed him doing?' And witness answered: 'Well for instance, we had defendant in the hospital for an operation. He came more or less violent and jumped out of the bed and went home. About 9:30 or 10:00 o'clock at night. He was to have been operated on the next morning. He did not get permission to go. He just left.'
"The defendant's counsel then asked witness this question: 'Did you notice whether or not defendant was nervous, highly nervous?" Witness answered: 'Well his conduct regarding things that came up always led me to believe he was not a normal individual.' Solicitor moved to exclude this answer because not responsive to the question. The court sustained the motion and defendant's counsel then and there in open court duly excepted.
"On further examination witness said: 'From the history of defendant's case and the observation I have made of him he has shown symptoms of brain tumor. Brain tumor is evidenced by light convulsions, depending on the type; some of them last over a period of years with varying symptoms; it affects a man's health and mind and will. I wouldn't say positively that defendant has a brain tumor, but the history of his conduct and symptoms would make it plausible that he had. At times I think he is sane. I don't think at all times he is sane. I have not seen him in one of the spells. The drinking of liquor has to do with a man's will power and his health and his nerves and
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