Green v. State

• Decision Date: 13 March 1953
• Docket Number: 6 Div. 440
• Citation: 64 So.2d 84,258 Ala. 471
• Parties: GREEN v. STATE.
• Court: Alabama Supreme Court

Page 84

64 So.2d 84

258 Ala. 471

GREEN v. STATE.

6 Div. 440.

Supreme Court of Alabama.

March 13, 1953.

Chas. E. Tweedy, Jr., Jas. L. Beech, Jr., and Still Hunter, Jasper, and John Posey, Haleyville, for appellant.

Si Garrett, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., and Thos. M. Haas, Montgomery, of counsel, for the State.

SIMPSON, Justice.

Claud Green, alias Cotton Green, was convicted of murder in the first degree and received a sentence of life imprisonment. This appeal is from that sentence and judgment.

On a painstaking study of the record, the court has reached the conclusion that certain errors occurred in the trial which necessitate a reversal of the judgment.

Following is a brief summary of the pertinent evidence: The victim, Mrs. Ada Boshell, aged seventy-three years at her death, lived alone in a rural area in Winston County on the Nauvoo-Double Springs road. Her nude body was discovered by a neighbor, one Joe Spain, about 5:30 Saturday morning, September 8, 1951, lying on the floor near the front door in the front room of her home. The homicide was horribly sadistic. Her throat had been cut, almost from ear to ear, with some dull instrument such as a handsaw. Her clothing had been set fire to and the left side of her body had been burned, there being third degree burns about the middle portion. Her face and other parts of the body contained various bruises and scratches and her sexual organs had been considerably mutilated.

Dr. C. V. Brooks, Assistant State Toxicologist, had examined the body a few hours after it was discovered and testified as to its condition. With respect to the private organs, he testified the vagina was standing open, exuding blood and mucous. There were lacerations and scratches around the orifice and extending into the vaginal canal, one scratch about one-sixteenth of an inch deep running 'from the orifice to the deepest portion of the vagina.' He could not say whether or not a rape had occurred or that a male organ had produced some of the injuries, but he was definitely of the opinion that one and probably two of the lacerations were caused by some hard inanimate instrument. She had been dead more than twelve hours before his examination.

Testimony of witnesses regarding the physical surroundings showed there was a considerable amount of blood around the body, bloody heelprints leading from the body back into the back of the house, where there was a refrigerator on the door of which there were bloody handprints. Something over $90 in greenbacks was found wrapped up in a tobacco sack under a chair near the deceased's head. One piece of evidence which evidently played a most material part in the conviction of the defendant was a stick found in one of the back rooms of the house on which there was blood. There were bloody handprints on the middle portion of the stick and at one end of the stick extending up some six inches there was also blood. It was presumably the State's theory that the stick was used to produce some of the injuries to the deceased's private organs. The toxicologist testified that the blood on the middle portion of the stick was human blood, but that he could not definitely say that that on the end of the stick was human blood because it had apparently been diluted or some of it washed off. Fingerprints were tried to be lifted from the stick, as well as the refrigerator, but none appeared from the tests.

There were no eye witnesses to the crime. Following are the circumstances which tended to connect the defendant with it: He lived several miles from the home of the deceased, about nine miles by road and four through the woods. He was seen in the vicinity of the deceased's house the day before her body was found, carrying a stick which four of the State's witnesses identified as the stick with the blood on it found at the deceased's home. These witnesses were Clarence Spain, who lived very near deceased's home; Spain's brother-in-law, Massey; and Richard McGough and his son, Wesley McGough. The McGoughs lived about three-quarters of a mile down the road from Spain's house. Defendant bought some whisky at Spain's in Spain's presence from his brother-in-law, Massey, about 10:30 Friday morning, September 7, and later went on down the road toward the McGoughs. He reached the McGoughs' about twelve noon and stayed at the McGoughs' until mid-afternoon. The two McGoughs testified that defendant and young Wesley McGough then went to deceased's home, where Wesley proposed to try to sell her some chickens. According to the McGoughs, defendant made some statement at their house about the deceased having money and carrying it in her bloomer leg, and when Wesley and defendant arrived at Mrs. Boshell's home, after staying around there some time and talking to Mrs. Boshell, Wesley testified that defendant said, 'We ought to shack up with her.' After staying around the premises of the deceased for some time, Wesley testified the two of them went into the pasture to take another drink of whisky and that he, Wesley, then went back to Mrs. Boshell's home to continue talking about selling the chickens and when he returned to where he had left the defendant, the defendant had gone and was seen no more by this witness (or any of the others) that day. Wesley then went home and arrived well after dark. The body was found the next morning.

Another State's witness testified about a statement made by defendant about a month before Mrs. Boshell was killed, when he and defendant were passing her home in a truck, that Mrs. Boshell 'had a right smart of money, and if I would take him back over there, he would get it, and he said if we didn't get any money, we could get a load of cattle. He said he would knock her in the head.' This witness was severely impeached by showing several convictions of crimes involving moral turpitude.

When the officers searched for the defendant the day the body was found, he could not be located, but he surrendered to the sheriff to Walker County some eight days later, at which time he had some scratches on his face which the doctors testified appeared to be 'fingernail scratches.' The toxicologist testified that the fingernails of the deceased were worn off beyond the meat of the fingers and that his examination failed to show any human skin or flesh under the nails.

The defendant denied all of the incriminating circumstances except he did admit he had a stick that day, but testified it was not the one in evidence (a gum) but was a dogwood stick, which he left at the McGoughs' house when he came on back through the woods and went home. He denied going to the Boshell home, but testified he and both the McGoughs went up the trail toward her home and that he left the McGoughs going in the direction of Mrs Boshell's home something after 3 o'clock in the afternoon and that he proceeded on through the woods to his home, arriving about sundown; that the next day about daylight he went fishing and when he showed up back at his house it was about dark and he spent the night there that night; that the next morning, Sunday, his nephew, Wesley Dutton, came over and informed him of his being accused of the murder of Mrs. Boshell and of people hunting him with guns and that he therefore 'stayed in the woods' until he could get to the sheriff of Walker County and surrender. He accounted for the scratches on his face from a broken razor used in shaving. This was corroborated by the testimony of several of his kinspeople.

The first error to be noticed is with reference to the cross-examination of Richard McGough and his son, Wesley McGough. Defendant was denied the privilege of fully cross-examining Richard McGough as to whether shortly prior to the death of Mrs. Boshell he had made certain statements showing hostility to her about her having taken his money and that he was going to get it back or kill her before he removed from her property, where he was living. The court also refused the defense the privilege of cross-examining Wesley McGough on whether he 'had had a falling out with Mrs. Boshell.' We think the court limited this right of cross-examination too strictly, to the prejudice of the defendant.

It is always competent on cross-examination to make such interrogation of a witness as would tend to test his interest, bias or prejudice or to illustrate or impeach the accuracy of his testimony. Both our appellate courts have approved the principle stated in 2 Wigmore on Evidence, 2d Ed., § 949, p. 332: 'The range of external circumstances from which probable bias may be inferred is infinite. Too much refinement in analyzing their probable effect is out of place.' Louisville & N. R. Co. v. Martin, 240 Ala. 124, 198 So. 141, 144; Sowell v. State, 30 Ala.App. 18, 199 So. 900.

And the extent to which a witness may be cross-examined depends in some instances on the importance of his testimony. In Louisville & N. R. Co. v. Martin, supra, this court quoted with approval the following pertinent statement of principle from the note in 74 A.L.R. 1154:

'* * * a witness may be testifying in reference to matters peculiarly within his knowledge, and as to which contradiction is difficult, where the turn of a phrase may control the disposition of the case. In such instances, it is submitted, a very searching inquiry as to circumstances indicating the existence of intellectual bias, or of emotional hostility, should be allowed. * * *'

We have often made reference to § 443, Title 7 of our Code, which stipulates that 'The right of cross-examination thorough and sifting, belongs to every party as to the witnesses called against him.'

The cross-examination of the two McGough witnesses is governed by these principles. Their testimony was the most damaging given against the defendant. The evidence to connect the defendant with the crime was entirely circumstantial and it was their testimony more than any other which tended to this effect. They were the...