Farley v. State, 6 Div. 454.
| Decision Date | 29 June 1948 |
| Docket Number | 6 Div. 454. |
| Citation | 37 So.2d 434,34 Ala.App. 54 |
| Parties | FARLEY v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Aug. 3, 1948.
Chas. E. Tweedy, Jr., of Jasper, for appellant.
A A. Carmichael, Atty. Gen., and Thos. F. Parker, Asst. Atty Gen., for the State.
The following charges were refused to defendant:
B 1. If you are reasonably satisfied from the evidence in this case and by a preponderance thereof that the defendant, at the time of commission of said assault was afflicted with a diseased mind and which disease was 'psychoneurosis anxiety state' and it was a form of insanity and that at said time, he did not know right from wrong, then you should find the defendant not guilty by reason of insanity.
12. The court charges the jury that to reduce the offense to assault and battery it is not necessary that the defendant, at the time he shot the prosecutrix, should have been unconscious of what he was doing, but, if there was a sufficient provocation to excite sudden passion, and the defendant acted under such passion, then the presumption is the passion disturbed the sway of reason and made him regardless of his act, and if the jury believe this from the evidence, they cannot convict the defendant of assault with intent to murder.
14. The court charges the jury that if the alleged assault in this case by the defendant was a consequence of passion suddenly aroused by a blow given or threatened the accused by the prosecutrix, then you cannot convict the defendant of assault with intent to murder.
18. The court charges that jury if, by a preponderance of the evidence, the jury are satisfied that, at the time of the alleged assault, the defendant was afflicted with a mental disease, and that by reason of the duress of such mental disease he had so far lost the power to choose between right and wrong (although he might have known right from wrong as applied to the assault), and the alleged assault was so connected with such mental disease in relation of consideration and effect as to be the product of it solely, the jury should acquit the defendant.
19. The court charges the jury that if you believe from the evidence that the defendant, at the time of the alleged assault, was acting under duress of a mental disease, which destroyed his free agency so that his power to resist assaulting his wife was at the time lost, and the alleged assault was the off-spring of such mental disease solely, then the court charges you that you should acquit the defendant.
27. The court charges the jury that good character itself is part of the evidence in this case, and if the jury upon the consideration of all the evidence have a reasonable doubt growing out of any part of the evidence as to the guilt of this defendant, then the jury will give the defendant the benefit of such doubt and find him not guilty.
This is an appeal from a conviction in the court below of the offense of assault with intent to murder. The injured party was the wife of the accused. A special plea of not guilty by reason of insanity was interposed.
The appellant entered the armed service in February 1943. He was taken an enemy prisoner in September 1944 and remained as such until April 1945. He was discharged from the Army in November 1945, at which time he returned to his home and reentered the employment, at a mine, of the Alabama By-Products Company. His marriage to the prosecutrix followed in February 1946, and the alleged assault occurred in July of the same year.
The wife became pregnant, and, according to her testimony, this was a disappointment to the defendant. This fact and other conditions caused considerable unhappiness and discord in the marriage relation. About a week prior to the time of the main event a rather serious misunderstanding arose, at which time the appellant drew a pistol on his wife and threatened to kill her. The latter left and went to the home of her parents, but returned a day or two later.
On the occasion of instant concern the differences were renewed in the little, humble home. The defendant secured an ax and proceeded to destroy some of the furniture and when his wife attempted to prevent this, according to her testimony, this happened: 'A. He hit me with the ax. First he knocked me down in the floor, I got hold of the ax, and he got down on the floor with his knees and mashed my fingers loose, and took it away from me, and then he went in the bed room and got his gun and come back. I started out on the porch, and he fired the first shot and didn't hit me, and the next shot hit me in the head. I fell on the floor, on the porch, on my hands and knees, and he stood over me and snapped the gun. Then he went out in the yard and snapped the gun some more, and then he left and some men come and got me and carried me to the hospital.
'Q. Did he make any statement at any time? A. When he started shooting at me, and said he was going to kill me and 'that damned little brat too."
The appellant denied that he threatened to take the life of his wife or that he was unhappy or discontented on account of expectation of a child. He claimed that at the time in question he was trying to persuade his wife to go back to the home of her parents and get some of her clothes which she had left there at a prior time, and on account of her refusal he proposed to break up the furniture with an ax. At this time we follow his testimony from the record: 'A. I brought the ax in the house, and she run in the bed room and set down, so I went in where she was and was talking to her, and she started crying, and I carried the ax and set it against the door on the back porch. I came back and drew a stool by her and went to love her up, and she wouldn't let me touch her, and when I raised up she went and got the ax.
'Q. What did she do with it? A. She brought it back in the house--that is when I broke the chairs.
'Q. Did she start on you with the ax? A. After I broke the chairs.
'Q. What did you do? A. I grabbed the ax, and she said, 'I will slap your damned brains out, you son of a bitch----'
On the insanity plea, considerable evidence was introduced both by the appellant and the State. Lay witnesses were used entirely with the exception of expert testimony incident to an examination of the accused which was made subsequently to the time of the assault.
Within a few days after the affray the defendant was committed to the Veterans Hospital at Tuscaloosa, Alabama. There he was examined by Dr. George H. Ingram, who was at the head of the mental department of the institution. The doctor testified that he did not observe the appellant prior to the time of the difficulty; that as a result of the examination and after consultation with the entire medical staff of the hospital, the decision was reached that the patient was affected with 'psycho neurosis, anxiety state'; and that this is a type of mental disease or insanity.
Over appellant's objection on the general grounds, the court permitted the prosecutrix to testify that the defendant tried to induce her to get rid of her unborn child and that he bought some medicine for this purpose.
As insisted by counsel, it may be accurately stated that the immediate difficulty arose over the refusal of the injured party to go to her parents' home and get her clothes.
As we have indicated, one of the basic causes of the lack of harmony between the two parties was the fact of the enceinte condition of the wife. This is clearly evinced by this question and answer:
We entertain the view, therefore, that the jury was entitled to know all pertinent facts which led up to and influenced the assault. This was material on the question of motive.
Justice Bouldin, writing for the Supreme Court in Brothers v. State, 236 Ala. 448, 183 So. 433, 435, made this pertinent observation:
See also, Fowler v. State, 155 Ala. 21, 45 So. 913; Reeves v. State, 201 Ala. 45, 77 So. 339; Grooms v. State, 228 Ala. 133, 152 So. 455; Blue v. State, 246 Ala. 73, 19 So.2d 11.
It is fitting to note also that we are here reviewing a case in which a plea of not guilty by reason of insanity was interposed. Therefore it was permissible that the evidence take a very wide range. This was pointed out by Justice Bouldin in the Brothers case, supra.
It is cogently urged that the trial court fell into error by allowing some lay witnesses to testify that in their opinion the defendant was sane at the time of the alleged offense. This testimony was, of course, tendered by the State in rebuttal of evidence tending to establish the instanity of the...
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