Fincher v. State

• Decision Date: 29 May 1924
• Docket Number: 7 Div. 428.
• Citation: 100 So. 657,211 Ala. 388
• Parties: FINCHER v. STATE.
• Court: Alabama Supreme Court

100 So. 657

211 Ala. 388

FINCHER v. STATE.

7 Div. 428.

Supreme Court of Alabama

May 29, 1924

Appeal from Circuit Court, Talladega County; A. P. Agee, Judge.

Gordon Fincher was convicted of murder in the first degree, and appeals. Affirmed.

Marion H. Sims, of Talladega, and Ross Blackmon, of Anniston, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

THOMAS J.

The conviction was for murder in the first degree, and the death penalty was imposed.

At the outset it may be said that the question argued by counsel to the effect that reversible error was committed in refusing several written charges will not be considered. It will be noted in the oral charge is the recitation:

"In this case the defendant has requested a number of written charges which, under the law, I give to you as a part of the law of the case which it is your duty to consider along with the oral charge with no greater weight, force or dignity."

The given charges are not set out in the record proper or as a part of the bill of exceptions. Where all charges given for defendant are not in the record, those given are presumed to cover all proper phases included in refused charges. It will therefore be presumed that every refused charge appearing in the record was substantially covered by the written charges which were given. Milligan v. State, 208 Ala. 223 94 So. 169.

The state's evidence tended to show that Miss May Belle McCullars went to the mail box about 9:30 a. m., a distance of a mile from her residence, by a way extending through a field and across a "mountain" covered with a "clump of woods 80 acres across." Not having returned at noon, a search was prosecuted along the way that later in the evening revealed her dead body. Her throat had been cut with a knife, and her body concealed.

When the witness Z. R. Bunn, and others, were arranging to go to the woods in the search, the witness asked another "if he had seen May Belle," eliciting a negative reply; and upon witness' expressing anxiety for the girl's safety, defendant interrupted with the inquiry: "Can I get you to grind my axe on the emery wheel?" Witness testified he told him:

"No, I had to see after that child. I said 'I am uneasy about her,' and he said, 'Can you grind it when you get back,' and I said: 'I do not know the consequence. I have got to find that girl."'

Thereafter the parties "went across the mountain." Witness testified defendant was there, and further testified:

"The first thing he [defendant] said to me was he heard some dogs running in the woods up there, and he says 'This afternoon I have heard this back this way.' That is the way it started, and I told him I didn't hear any dogs, and we kept moving on, and we went something like 50 yards again. Me and Mr. Hazel was walking, and he come up with me again, and said: 'I saw May Belle as she went to the mail box this morning, but would not have seen her but for Jeff, her dog. I was looking for crows.' He said he saw some crows and chased the crows on the other end of that point and up by Mrs. Finlay's pasture plumb into Mrs Hackney's mountains. That was all the conversation we had until after we got to Mr. Wright's. At the time he spoke to me about grinding the axe, he didn't say anything about having seen May Belle. We went on in the woods searching for her. There was nobody besides me and my father and the defendant and Jasper Hazel."

There was no objection to the foregoing evidence. The voluntary nature of the statements as well as the circumstances under which they were made were sufficient to bring that evidence within the rule as to voluntary statements against interest ( Heningburg v. State, 153 Ala. 13, 45 So. 246; Washington v. State, 106 Ala. 58, 17 So. 546; Williams v. State, 4 Ala. App. 92, 58 So. 925), if this were necessary.

The same witness testified that later in the evening, when the body was being prepared for burial, defendant "had on a pair of overalls and a brown coat," and did not have on leggins, as he did when witness first saw him that morning when he was wearing "a jumper overall and overalls and canvas leggins."

Other evidence for the state showed blood stains on the leggins, which a chemical analysis revealed to be human blood. Defendant's evidence explained this appearance of blood on the leggins by the fact that he had cut his hand in hauling wood and so stained his clothing.

The witness Campbell was examined as to the condition of defendant's knife, and stated that it looked a "little bit stained." The solicitor suggested that the statement might be excluded, and, on being excluded and defendant excepting, the solicitor asked: "How did it look?" The witness answered: "It looked like blood." Defendant objected after answer. If it had been available to him so excepting, that objection was too late. However, the knife was in evidence; there was evidence that deceased was killed by having her throat cut; there was human blood on defendant's clothing and on his gun.

The condition of the knife was material. There was no error in the witness' shorthand rendition of the fact that "it looked like blood." Barlow v. Hamilton, 151 Ala. 637, 44 So. 658, "I suppose his feelings were hurt;" Ray v. State, 50 Ala. 104, "defendant was jesting;" Jenkins v. State, 82 Ala. 25, 2 So. 150, defendant "appeared like he was mad"; Williams v. State, 149 Ala. 4, 43 So. 720, "from what he saw and in his best judgment it was defendant"; Whistle Bottling Co, v. Searson, 207 Ala. 387, 92 So. 657, "suffered during that time"; Thornton v. State, 113 Ala. 43, 21 So. 356, 59 Am. St. Rep. 97, witness was permitted to say that "defendant looked frightened"; Burton v. State, 107 Ala. 108, 18 So. 284, defendant "looked paler than usual"; Burney v. Torrey, 100 Ala. 157, 14 So. 685, 46 Am. St. Rep. 33, defendant "seemed to be suffering," "looked bad," "was childish," "was simple;" S. & N. Ala. R. R. Co. v. McLondon, 63 Ala. 266, "was not able to," etc.; Jenkins v. State, supra, Carney v. State, 79 Ala. 14, and Long v. Seigel, 177 Ala. 338, 58 So. 380, "bad temper;" Barker v. Coleman, 35 Ala. 221, "was in bad health;" White v. State, 103 Ala. 72, 16 So. 63, "talked with his usual intelligence;" B. R. & E. Co. v. Franscomb, 124 Ala. 621, 27 So. 508. "seemed to be very weak;" L. R. A. 1918A, 721, note.

A witness (Hazel) testified that on the day of the homicide he had met deceased at or near the mail box, returned with her to the point where she turned "off up the road which leads to her father's house"; that this was about 10 o'clock in the morning of the day of her death, and that he saw her no more in life; that when later the witness joined the hunt for the deceased, defendant was present. The proper predicate being laid, the witness, without objection, was permitted to testify that he told defendant what May Belle had said, and that he [defendant] replied:

"Yes, I seen her up there too. I was up there crow hunting when she came along. I wouldn't have seen her if it hadn't been for the dog."

The witness further testified that defendant said he "saw her as she went for the mail" and "talked to her." The witness also testified that "after we got to where she was found" (and before the body was discovered) defendant said "that he would be arrested about that," to which witness replied: "I don't see why; we don't know nothing about the girl." On cross-examination the witness stated:

"Her [deceased's] statement to me compares with the statement Gordon [defendant] made to me. Gordon told me that in view of the fact that I saw her last after she had seen him, and he had seen her, that as he had seen her up there at the tree, that me and him would likely be arrested for that offense, we two boys having seen the girl there in the woods."

The witness further testified, on his redirect examination, that the deceased told him, as they returned from the mail box, that she had seen "Gordon Fincher up there behind a tree and she got scared."

The witness Mrs. Mattie Bunn, after proper predicate was laid, testified substantially to the same conversation detailed by her husband as having taken place in the jail at Talladega on March 22d. Adverting to the testimony of the witness Z. R. Bunn, the husband of Mrs. Mattie Bunn, after proper predicate had been established as to each conversation detailed, he said:

"When we got in there [the jail at Talladega] on or about the 22d of March, there was present at that conversation Ed Haynes and myself and my wife and the sheriff, Mr. George Burk. When we got in there, Gordon Fincher told my wife that we wanted to talk with her privately. She didn't go out to talk with him privately. Well, he wrote on a paper and stuck it up to the cell and said he wanted to tell what the dead girl said. He said the girl left a message with him for her mother, that May Belle told him to tell her poor mother how she had been treated. He said he had been wanting to tell the truth about the case all the time and they would not let him. *** He said he had a message that he had been wanting to deliver for a long time and he didn't think his father had treated him right in not letting him tell it. I don't think I heard all that he said to Mrs. Bunn on that occasion; I am sure not. I went there on a subsequent occasion. That was about the 28th of March. Mr. Haynes was all the one was present at that time."

The bill of exceptions then recites:

"Thereupon, the solicitor asked the witness the following question: 'Tell the jury as near as you can what he said to you on that occasion.' The witness replied: 'On that occasion he told me that his wife didn't know anything more about the murder than I did, except she knew there was something wrong with him when he

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