Grissett v. State, 4 Div. 165.

• Decision Date: 15 May 1941
• Docket Number: 4 Div. 165.
• Citation: 2 So.2d 399,241 Ala. 343
• Parties: GRISSETT v. STATE.
• Court: Alabama Supreme Court

2 So.2d 399

241 Ala. 343

GRISSETT v. STATE.

4 Div. 165.

Supreme Court of Alabama

May 15, 1941

Rehearing Denied June 5, 1941.

Appeal from Circuit Court, Pike County; W. L. Parks, Judge.

E. C. Orme, of Troy, for appellant.

Thos S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty Gen., for the State.

FOSTER Justice.

Appellant was convicted of murder in the second degree, and punishment fixed at thirty-five years in the penitentiary, for the killing of Hillary Killingsworth. Two other men, Truman Paul and Curtis Sanders, were killed in the same transaction. It does not appear whether he was also indicted for killing them.

The State, in making out its case, proved by a witness alleged to be present that defendant shot each of those three men, one after the other in rapid succession-only one shot for each-and that Killingsworth and Paul died immediately Sanders was carried to a hospital and died a few days later. According to this witness the three men who were shot were unarmed and were not making any sort of assault on appellant.

At this time, the State introduced some pictures of the scene of the difficulty and then introduced the county coroner who testified that he took some pictures (photographs) at the funeral home of the dead bodies of Killingsworth and Paul, showing the location of the bullet hole in the chest of each a little on the left side. The pictures included the entire upper portion of the naked body from about the pit of the stomach, including the head, as each lay dead on a stretcher. Objection was made and overruled to each picture separately, and exception taken. The witness also testified that he was present when autopsies were performed on those bodies shortly afterwards by two doctors and their helpers. That a bullet was removed from the body of each of them. Those two bullets were identified and introduced in evidence. Objection was made especially to that one taken from the body of Paul, and was made to each step in the testimony as to the bullets, and it was overruled and exception reserved. There was competent evidence that those bullets were thirty-eight caliber. Another of the same sort was said to have been found on the ground. An expert testified that those taken from the bodies of Killingsworth and Paul were shot from the same pistol, but the other was not. Compare, Sovereign Camp, W. O. W. v. Gunn, 224 Ala. 444, 140 So. 410.

Up to this point in the trial, there was no evidence of any confessionary statements by defendant, either that he did the shooting or did not, nor how it occurred. Later in the trial, the sheriff testified that he went there to the scene of the shooting that night and saw the dead bodies of Paul and Killingsworth, and that he arrested defendant and told him he wanted his gun; that defendant got it out of the store where the shooting occurred, and gave him a 32-20 Smith and Wesson, and told the sheriff to look at it that it had not been fired. That was not the gun which shot the bullets killing Paul and Killingsworth. Defendant later in the trial admitted killing all three men with a thirty-eight Smith and Wesson, claiming that one was killed by accident, and the other two in self-defense.

The questions so far presented, which need consideration, are the rulings on objections to the pictures of the dead bodies of Paul and Killingsworth, and especially of Paul since defendant is not being tried for killing him; also the rulings on objections to the thirty-eight caliber bullets taken from Paul and Killingsworth, respectively, and especially that taken from Paul. There is no serious question raised as to the admissibility and relevancy of the picture of Killingsworth, nor of the bullet taken from his body. But it is seriously insisted that the picture of Paul and bullet taken from his body are not relevant on a charge of murder for killing Killingsworth

At the time when this evidence was offered, the State had the burden of showing that defendant committed the act intentionally. All that then and there occurred was of course relevant and admissible, though it included the killing of others than the one named in the indictment, and though defendant may have committed other offenses than the particular one on which he was being tried. Smith v. State, 88 Ala. 73, 7 So. 52; Jackson v. State, 229 Ala. 48, 155 So. 581; 16 Corpus Juris 574, section 1115; 22 Corpus Juris Secundum, Criminal Law, 1049, § 663, note 3.

The bullets taken from the two men then and there killed were admissible; also that they were shot out of the same pistol, all as material steps in the progress of developing the case.

There is only one feature of this situation that gives us any serious concern, and that is whether the picture of Paul sheds any light on any matter connected with the proper solution of the case or whether its only effect was to inflame the minds of the jury. The following is taken from 22 Corpus Juris Secundum, Criminal Law, page 1226, § 716 "In a prosecution for the killing or injuring of one person, wounds or scars on other persons resulting from the same transaction may be exhibited to the jury where they are relevant to a matter in issue, but not where they do not serve to throw light on any matter connected with the proper solution of the case and their only effect is to inflame...