Gast v. State

• Decision Date: 12 March 1936
• Docket Number: 6 Div. 794
• Citation: 167 So. 554,232 Ala. 307
• Parties: GAST v. STATE.
• Court: Alabama Supreme Court

167 So. 554

232 Ala. 307

GAST v. STATE.

6 Div. 794

Supreme Court of Alabama

March 12, 1936

Rehearing Denied April 30, 1936

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Joseph Wheeler Gast was convicted of murder in the first degree, and he appeals.

Affirmed.

L.C Bell, of Tuscaloosa, for appellant.

A.A Carmichael, Atty. Gen., Jas. L. Screws, Asst. Atty. Gen., and Gordon Davis, Solicitor, of Tuscaloosa, for the State.

THOMAS Justice.

The defendant was indicted and convicted of murder in the first degree, and the jury fixed the penalty at "death in the electric chair."

This was a sufficient verdict on which judgment was rendered. Hull v. State (Ala.Sup.) 167 So. 553.

The undisputed evidence shows that defendant killed his wife, reported his offense to neighbors, and immediately surrendered to the sheriff of his county. His defense was insanity, introducing one expert and several lay witnesses to show his unbalanced mental status, or that he was insane at the time the offense was committed and at the time of his trial. Defendant took the stand as a witness in his own behalf. The rebuttal evidence by the state consisted of several lay witnesses and two expert witnesses, who testified that in their opinion the defendant was sane. Thus a jury question was presented. McMillan v. Aiken et al., 205 Ala. 35, 40, 88 So. 135.

A motion for continuance for lack of time in which to prepare a defense was addressed to the sound discretion of the trial court, and denied. In denying the motion, the court exercised a sound discretion in the premises. Peterson v. State (Ala.Sup.) 166 So. 20; Burns v. State, 226 Ala. 117, 145 So. 436; Hudson v. State, 217 Ala. 479, 116 So. 800.

The indictment was returned on April 11, 1935. By agreement of counsel the trial was set for April 25, 1935. The arraignment was of date of April 18, 1935, when pleas of "not guilty" and "not guilty by reason of insanity" were interposed.

The bill of exceptions recites, among other things, the following ground for continuance made on the date set for the trial: "That a motion was made before the Court for the appointment of specialists, or physicians to examine the defendant for the purpose of determining his sanity. That this motion was granted, but the examination has not been made and the Defendant thereby deprived of expert testimony to determine his mental condition," and on April 25, 1935, a formal order was entered for "Dr. J.S. Tarwater, Dr. S.T. Hardin and Dr. G.B. Conwill, who are reputable specialist practitioners in mental and nervous diseases, to examine the defendant, Joseph Wheeler Gast, and report to the Court whether there is reasonable ground to believe that defendant was insane at the time of the commission of the offense with which he is charged, or presently, and make written report to the Court," concluding: "This was merely for the information of the Court to guide it in determining its course in this matter."

It is then recited, that "We, Doctors G.B. Conwill, J.S. Tarwater, and S.T. Hardin, appointed by the Court to examine Joseph Wheeler Gast, after making a complete examination to the best of our knowledge, find that there is reasonable ground to believe that defendant was not insane at the time of the commission of the offense with which he is charged or that he is presently insane; on the contrary we find that he was sane at the time of the commission of the crime and sane at this time." This report being made and filed, the court announced that he would proceed with the trial.

Defendant's counsel having examined the report, objected thereto on the ground "That the examination made by the physicians and their observation (were) so short that it would be difficult to determine in that short length of time, and on that short notice, whether or not there is reasonable ground for believing that the defendant was insane at the time that he committed the homicide"; the court stating in reply, "That matter is merely for the information of the Court. If the Court had information that this man was insane at the time of the offense, then it would proceed and have him committed for observation, but having no such information, I cannot do it. I will overrule the motion for a continuance."

The action above recited took place on the date of the trial. If objection by defendant was to be made, it should have been addressed to the discretion of the court when the selection and appointment of that commission was made, and not on the date of the trial. The statute was not mandatory, but merely discretionary. Oliver v. State (Ala.Sup.) 166 So. 615; Rohn v. State, 186 Ala. 5, 65 So. 42; Granberry v. State, 184 Ala. 5, 63 So. 975; Cody v. State, 24 Ala.App. 499, 137 So. 318. Under the circumstances of the case, the trial court sought to comply with the discretionary provisions of the act of 1933, Gen.Acts 1933, pp. 144, 145.

The defendant's motion for a continuance on the ground of an absent witness was properly overruled. No compulsory process was prayed, and the court was not informed of the nature and materiality of the evidence sought of that witness. Hull v. State, supra; Hudson v. State, supra.

The expert witnesses expressing their opinion of defendant's mental status were properly qualified as experts. The lay witnesses were properly qualified as to their immediate association and familiarity with the defendant to render their opinion as to his sanity. The sufficiency of a witness' efficiency in the knowledge of the subject and material facts to qualify him to testify is largely within the sound discretion of the trial court. Watson et al. v. Hardaway-Covington Cotton Co., 223 Ala. 443, 137 So. 33; Louisville & Nashville R. Co. v. Lovell, 196 Ala. 94, 71 So. 995; Pope v. Ryals (Ala.Sup.) 167 So. 721; Williams v. State, 224 Ala. 6, 138 So. 291; Bass v. State, 219 Ala. 282, 122 So. 45; Kilpatrick v. State, 213 Ala. 358, 104 So. 656; Jones v. State, 181 Ala. 63, 61 So. 434. And no abuse of discretion was shown to have been committed by the trial court in allowing the witnesses--expert and lay--to testify.

The bill of exceptions recites that defendant was a witness in his own behalf; testified of his residence at Ralph and other places, of his fifteen years of married life to the deceased and their six children; that he moved to a "CCC Camp" (Civilian Conservation Corps) and remained there until August, 1934; and that he and his wife had "ups and downs" in their associations as husband and wife. The witness was asked by his counsel and answered as follows:

"Ques. Did you ever accuse her of any improper relations with other men before that time? Ans. No.

"Ques. Now Mr. Gast, commencing from that time, after you came home from the CCC Camp, and tell your story to the jury?

"Objection by Mr. Wright, Mr. Wright stating, 'We do not know what his story is.' "No ruling by the Court.

"Ques. Tell what you found when you got home and what happened. Ans. It ain't fair; I won't talk about it; I ain't going to talk about it, she cannot strike back at me; I will take the fate that the jury gives me; I will go to the electric chair like a man; I will die before I will say a harm word against my wife. I don't want you to think I am crazy; it is not fair to her to say a harm word against her."

The witness was then cross-examined by the state as follows:

"Q. Mr. Gast, how many times did you shoot your wife?

"Objection to this question by Mr. Bell, on the ground, first, that the testimony called for does not relate to or contradict any testimony given by the defendant on direct examination, and is therefore improper, incompetent and irrelevant, and on the further ground that the defendant has refused to discuss the facts in this case, which he has the constitutional right to do. The Court overruled the objection and defendant duly excepted.

"A. How many times did I shoot her?

"Q. I will ask you if she did not have her right hand up there to protect herself as you shot her?

"Objection by Mr. Bell on the same ground, was overruled by the Court and the defendant duly excepted.

"A. I don't know. I could not say; I really don't."

It is insisted by appellant's counsel that since defendant had made no statement about which there was a conflict in the...