Dyer v. State, 6 Div. 682.

CourtSupreme Court of Alabama
Writing for the CourtLIVINGSTON, Justice.
Citation241 Ala. 679,4 So.2d 311
Docket Number6 Div. 682.
Decision Date16 June 1941
PartiesDYER v. STATE.

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. [4 So.2d 312]

[241 Ala. 681] Beddow, Ray & Jones, of Birmingham, for appellant.

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

[241 Ala. 682] 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 [4 So.2d 313] 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...

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57 practice notes
  • Arthur v. State, 8 Div. 873
    • United States
    • Alabama Court of Criminal Appeals
    • 10 Abril 1984
    ...the right, within the trial court's discretion, to examine jurors on any matter which might tend to affect their verdict. Dyer v. State, 241 Ala. 679, 4 So.2d 311 (1941); Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247 (1969); Ex Parte Ledbetter, 404 So.2d 731 (Ala.1981). However, solicitin......
  • Griffin v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 10 Diciembre 1999
    ...question the jurors as to any matter that `might aid him in the intelligent exercise of his right to peremptory challenges. Dyer v. State, 241 Ala. 679, 4 So.2d 311 (1941).' Alabama Power Co. v. Bonner, 459 So.2d 827, 832 (Ala.1984), overruled on other grounds, Cooper v. Bishop Freeman Co.,......
  • Burns v. State, 6 Div. 186.
    • United States
    • Supreme Court of Alabama
    • 15 Junio 1944
    ...v. State, 27 Ala.App. 64, 167 So. 340, cert. den. 232 Ala. 150, 167 So. 349; Green v. State, 233 Ala. 349, 171 So. 643; Dyer v. State, 241 Ala. 679, 4 So.2d 311. Over the objections of counsel, the State was allowed, after the defendant had rested his case, to introduce evidence not in rebu......
  • Fuller v. State, 6 Div. 917
    • United States
    • Supreme Court of Alabama
    • 12 Febrero 1959
    ...as constitutional by this court. Morris v. State, 234 Ala. 520, 175 So. 283; Vaughn v. State, 236 Ala. 442, 183 So. 428; Dyer v. State, 241 Ala. 679, 4 So.2d We find no cases in this state directly in point on the question involved. In the analogous case of Williams v. State, 96 Tex.Cr.R. 1......
  • Request a trial to view additional results
57 cases
  • Drake v. Covington County Board of Education, Civ. A. No. 4144-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 23 Enero 1974
    ...communications with his patient. Horne v. Patton, Ala., 287 So.2d 824 (1973); Gullege v. Mitchel, 242 Ala. 342, 6 So.2d 22; Dyer v. State, 241 Ala. 679, 4 So.2d 311; Beecher v. State, 288 Ala. 1, 256 So.2d 154, 164, reversed on other grounds 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317. If h......
  • New York Times Co. v. Sullivan, 3 Div. 961
    • United States
    • Supreme Court of Alabama
    • 30 Agosto 1962
    ...say that this discretion has been abused where similar questions have already been answered by the prospective jurors. Dyer v. State, 241 Ala. 679, 4 So.2d Only the second question could have conceivably revealed anything which was not already brought out by appellant's interrogation of the......
  • Burns v. State, 6 Div. 186.
    • United States
    • Supreme Court of Alabama
    • 15 Junio 1944
    ...v. State, 27 Ala.App. 64, 167 So. 340, cert. den. 232 Ala. 150, 167 So. 349; Green v. State, 233 Ala. 349, 171 So. 643; Dyer v. State, 241 Ala. 679, 4 So.2d 311. Over the objections of counsel, the State was allowed, after the defendant had rested his case, to introduce evidence not in rebu......
  • Arthur v. State, 8 Div. 873
    • United States
    • Alabama Court of Criminal Appeals
    • 10 Abril 1984
    ...the right, within the trial court's discretion, to examine jurors on any matter which might tend to affect their verdict. Dyer v. State, 241 Ala. 679, 4 So.2d 311 (1941); Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247 (1969); Ex Parte Ledbetter, 404 So.2d 731 (Ala.1981). However, solicitin......
  • Request a trial to view additional results

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