Dyer v. State

• Decision Date: 16 June 1941
• Docket Number: 6 Div. 682.
• Citation: 241 Ala. 679,4 So.2d 311
• Parties: DYER v. STATE.
• Court: Alabama Supreme Court

4 So.2d 311

241 Ala. 679

DYER v. STATE.

6 Div. 682.

Supreme Court of Alabama

June 16, 1941

Rehearing Denied Nov. 6, 1941.

Beddow, Ray & Jones, of Birmingham, for appellant.

Thos S. Lawson, Atty Gen., and Jas. F. Matthews, Asst. Atty. Gen for the State.

LIVINGSTON, Justice.

The appellant, Albert Dyer, indicted and tried for killing his wife, Dorothy Dyer, was convicted of murder in the first degree, and sentenced to suffer the death penalty. He interposed the plea of "not guilty," and "not guilty by reason of insanity." He offered no evidence to disprove the fact that he killed his wife.

The deceased was shot three times with a pistol. The homicide took place in the lobby of a hotel in Birmingham on the night of November 11, 1939. The appellant and deceased had been married for the period of four or five months preceding the killing.

On or about October 19, 1939, the defendant and deceased consulted a physician for the purpose of determining whether the deceased was pregnant, and were advised that she was. The appellant introduced evidence tending to prove that the appellant wanted a child, and that deceased did not. That deceased upon being advised that she was pregnant became angry and resentful, and refused to further live with appellant as his wife, and finally left him on November 3 1939, and refused to return home, living instead with a friend (Mrs. Lyemance) whom appellant shot and killed at the same time and place he killed his wife.

Appellant contends that his wife's action, detailed at great length in the record, dethroned his reason and that he was not criminally responsible at the time the fatal shots were fired.

Appellant challenges the constitutionality of the Act of 1932, Special Session, page 89, Code 1940, Tit. 62, §§ 207-220, and the Act of 1935, page 1010, Code 1940, Tit. 7, § 221; Tit. 62, §§ 221-227, providing for what is commonly known as the "secret venire" for counties having a population of more than 300,000. These same questions have been decided contrary to the contention of appellant in an able decision by Judge Samford in the case of Dixon v. State, 27 Ala.App. 64, 167 So. 340, and in which case certiorari was denied by this court in Dixon v. State, 232 Ala. 150, 167 So. 349. It would serve no good purpose to repeat what was there said. See, also, Green v. State, 233 Ala. 349, 171 So. 643; Vaughn v. State, 236 Ala. 442, 183 So. 428.

Section 8662, Code of 1923, Code 1940, Tit. 30, § 52, gives to parties having respective peremptory challenges or the right to a struck jury, the right within the limits of propriety and pertinence to reasonably propound questions to jurors to enable such party or his counsel to intelligently exercise that right, though the matters of which inquiry is made are not a disqualification. Such right to be exercised within the sound discretion of the court.

Appellant complains of the court's ruling in not allowing answers to the following questions: "Are either of you kin to any member of the police force of the city of Birmingham? Also, are either of you kin to the sheriff of this county or any deputy sheriff of this county?" The inquiry permitted under the provisions of section 8662, supra, should be liberal and extend to any and all matters touching the qualification, interest or bias of prospective jurors. It was not an abuse of discretion in refusing to allow answers to questions as general in character and scope as those set out above. Similar questions had already been answered by the prospective jurors relative to officers known to be witnesses or having other connections with the case.

In this State communications to a physician or surgeon by a patient under his charge, or by one seeking professional advice, are not privileged. The common law does not extend such privilege to physicians and their patients, and in the absence of a statute creating it, none exists in Alabama. The trial court was in error in advising defendant's witness, Dr. Copeland, to the contrary. However, the subsequent full and complete examination of the doctor by appellant rendered the error harmless. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.

On cross-examination, over the objection of appellant, Dr. Copeland testified that Mrs. Dyer, the deceased, told him that she wanted him to arrest the development of pregnancy, and that Dyer (appellant) consented to it. This statement was made in the office of Dr. Copeland at the time Mr. and Mrs. Dyer were there for the purpose of determining whether or not Mrs. Dyer was pregnant. It was made to Dr. Copeland in his private office where Dr. Copeland and Mrs. Dyer were alone, and not in the hearing or presence of appellant. Dr. Copeland testified to the same effect on direct examination. The testimony on direct examination was probably not responsive to any question propounded to him by appellant's counsel, but no request to exclude it on that ground, or any other ground, was made. Therefore, the court's action in overruling appellant's objection was not erroneous.

The duty of determining whether an admission or confession of the defendant was voluntary rests with the trial court. The fact that the accused was under arrest at the time of the confession did not render it inadmissible after a proper predicate had been laid. Curry v. State, 203 Ala. 239, 82 So. 489; Cunningham v. State, 207 Ala. 433, 93 So. 446; Stone v. State, 208 Ala. 50, 93 So. 706.

No confession of guilt should be allowed to go to the jury unless it appears, either from surrounding circumstances or from positive evidence, that the confession was freely and voluntarily made. In this State confessions are prima facie involuntarily made, and there must therefore be evidence addressed to the trial judge (unless the circumstances attending the confession show that it was voluntary) rebutting that presumption and...