Gary v. State

• Decision Date: 31 January 1922
• Docket Number: 6 Div. 7.
• Citation: 92 So. 533,18 Ala.App. 367
• Parties: GARY v. STATE.
• Court: Alabama Court of Appeals

92 So. 533

18 Ala.App. 367

GARY v. STATE.

6 Div. 7.

Court of Appeals of Alabama

January 31, 1922

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Otis Gary was convicted of murder in the second degree, and he appeals. Reversed and remanded.

F. D McArthur, of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAMFORD J.

The indictment was as follows:

"The grand jury of said county charge that before the finding of this indictment Otis Gary unlawfully and with malice aforethought killed John Trimble, alias Rock, by house cutting him with a knife, against the peace and dignity of the state of Alabama."

Demurrer was interposed seeking to have the indictment declared bad because the word "house" in some way had been written into the indictment in such way as to render the charge meaningless. This is clearly a "lapsus pennæ," and does not render the indictment meaningless. On the contrary, the error is so apparent as to correct itself.

The rule heretofore followed and which we now reaffirm is:

"If the sense of an indictment is clear, technical exceptions thereto should not be favorably regarded, and verbal inaccuracies or clerical errors which are explained and corrected by necessary intendment from other parts of the indictment, or errors of spelling not obscuring the sense, are not fatal." Couch v. State, 6 Ala. App. 43, 6 So. 539; Sanders v. State, 2 Ala. App. 13, 56 So. 69; Grant v. State, 55 Ala. 201; Holland v State, 11 Ala. App. 134, 66 So. 126.

After the jury had been selected and the cause was at issue, and just before the examination of witnesses was begun, and while the solicitor was in the jury room conversing with witnesses one of the jurors, without the permission of the court, left the jury box, went to the rear of the courtroom and into a jury room, and from thence into a toilet adjacent to and opening only into the jury room. The court bailiff was at the time either in the vestibule between the courtroom and the jury room or in the jury room while the juror was in the toilet. It is not shown or claimed that the juror saw or spoke to any one. On the return of the juror to his seat on the jury, defendant moved for a mistrial and continuance. This motion was overruled. In a case similar to this the Supreme Court held that the defendant had not suffered injury and refused to reverse the judgment on that ground. While we recognize the rule which requires of trial courts the greatest care in giving to defendants a fair trial, we are not only bound by the holding of the Supreme Court, but concur in its conclusion. Sanders v. State, 181 Ala. 35, 61 So. 336.

As to whether the dead man ran the brother of defendant out of the mines on the day before the killing was immaterial and irrelevant, and certainly is not a part of the res gestæ, nor could it shed any light upon the difficulty then being inquired into. At the time this evidence was offered, according to the testimony then before the court, the attack by defendant was entirely unwarranted, without any demonstration having been made on the part of the dead man.

At the conclusion of the state's testimony, defendant moved to exclude the entire evidence on the ground that the evidence for the state failed to establish the fact that the blow struck by defendant caused the death of deceased. While it is undoubtedly the law that a causal connection must be shown between the blow stricken by defendant and the death of deceased, and that this fact must be proven beyond a reasonable doubt, such fact can be established by circumstances as well as by direct evidence, and where it is made to appear that the defendant struck the deceased with an open knife, the blade penetrating the temple and breaking off in the wound, that the deceased was taken from the scene of the difficulty to a hospital, and on the next day was dead and the only wound found on him by the undertaker who examined the body was the knife wound in the temple, the jury is warranted in finding that the knife wound was the cause of death, unless the defendant should by proof rebut this presumption by showing facts from which the jury might reach a different conclusion or that would create a reasonable doubt in the minds of the jury that the causal connection existed. 13 R. C. L. p. 747, § 52; Hollywood v. State, 19 Wyo. 495, 120 P. 471, 122 P. 588, Ann. Cas. 1913E, 218.

To put the court in error for having sustained the state's objection to the question asked by defendant's counsel of defendant's witness Anderson, "Do you know whether he [deceased] had the reputation of carrying a pistol or not?" it was necessary for the defendant to have stated to the court his intention to offer evidence connecting the evidence sought with the defendant. It was shown without conflict that the deceased had no weapon at the time he was killed; therefore the evidence sought would have been admissible for the limited purpose only of showing the reasonableness of defendant's hostile interpretation of a movement on the part of deceased, and at the time the question was asked there was no evidence that the defendant knew of any such reputation or habit of deceased. By a failure to inform the court that he expected to make such proof the court cannot be put in error for having sustained the objection to the question asked. Glover v. State, 200 Ala. 384, 76 So. 300; Sims v. State, 139 Ala. 74, 36 So. 138, 101 Am. St. Rep. 17; Rodgers v. State, 144 Ala. 32, 40 So. 572.

The court properly sustained the state's objection to the question asked by defendant's counsel of the witness Monroe, "Do you know whether he [deceased] had the reputation of carrying a gun or not and defendant knew it?" The evidence was without conflict that...