Hunt v. State

• Decision Date: 09 May 1946
• Docket Number: 3 Div. 433.
• Citation: 248 Ala. 217,27 So.2d 186
• Parties: HUNT v. STATE.
• Court: Alabama Supreme Court

27 So.2d 186

248 Ala. 217

HUNT v. STATE.

3 Div. 433.

Supreme Court of Alabama

May 9, 1946

Rehearing Denied Aug. 2, 1946.

Gerald & Gerald, of Clanton, and John A. Dickinson, of Prattville, for appellant.

Wm N. McQueen, Atty. Gen., and John O. Harris, Asst. Atty. Gen for the State.

FOSTER, Justice.

Appellant was tried and convicted of murder in the first degree, and his punishment fixed at death. His pleas were not guilty and not guilty by reason of insanity.

There was no conflict as to the conduct of appellant, and no contention that he did not kill the person charged, his estranged wife, without justification. He seriously sought to sustain his plea of not guilty by reason of insanity, and offered much evidence to that effect.

In rebuttal the State offered witnesses, some of whom were non-expert and some qualified as expert.

A. C Anderson was a non-expert who for a year and ten months was foreman supervising the work of appellant, said to be a skilled worker for the Continental Gin Company, doing work more and better than the average. The State's counsel then asked him the following question and he answered with no objection then made. 'Did you notice anything abnormal, eccentric or peculiar, out of the ordinary about him'? The answer was 'nothing abnormal, no.' After some cross-examination by appellant's counsel, he moved to exclude the answer of witness, because (1) general grounds, (2) does not tend to shed light on the issues, (3) it would not shed light on the issue of insanity. The court overruled the motion and defendant excepted.

J. T. Post was also a non-expert witness for the State. He knew appellant all his life; lived about half mile away; both worked for the Continental Gin Company, and rode together back and forth to work from the latter part of November 1944 until December 18, 1944, the date of the killing. Before that time witness had been in the Army for thirteen months, and had no contact with him. Before that time he knew him, but never had any dealings with him, but talked with him occasionally, and heard him talk. Rode with him every day to work after 'we started,' except Sunday. He did the driving. He drove all right, and knew how to handle a car. 'On such trips we would talk.' It took thirty or thirty-five minutes to make the trip. On the morning of the 18th, they rode together. He did not go in to work, and did not punch the clock. He was then asked: 'In your opinion, all during the time that you have known Hicks Hunt, the defendant in this case, did you ever observe anything abnormal, irrational or out of the ordinary about him'? He answered, 'I did not.' No objection was made.

On cross-examination he was closely questioned as to all such matters by defendant's counsel. On re-direct, he was asked by the State's counsel, 'State whether or not on the morning of December 18, 1944, when you rode to Prattville with defendant Hicks Hunt, he appeared to be, or seemed to be all right.' Objection was made, overruled, and defendant excepted. The witness answered: 'He seemed to be all right.' Another question: 'State whether or not at that time, he talked intelligently'? Objection was made and overruled, and exception reserved.

A non-expert witness may deny generally the existence of any fact showing an abnormal or unnatural state of mind, without specifying any of such facts. Ford v. State, 71 Ala. 385(8); Parrish v. State, 139 Ala. 16, 43, 36 So. 1012; George v. State, 240 Ala. 632, 636(6), 200 So. 602, and cases there cited. In those cases the witness was then asked to express his opinion whether the party was sane. But such opinion is not necessary to the legality of his testimony that he saw no fact or circumstance showing an abnormal or unnatural state of mind.

We do not think the record here shows meritorious ground for reversal on account of the matters to which we have referred. We do not consider any technical matter in that connection, but only the legality of the evidence.

In rebuttal of evidence of the insanity of appellant, the State introduced as an expert Dr. E. M. Thomas, who with two other doctors had made an examination of appellant as to his sanity on the preceding Sunday. After asking him questions concerning his qualifications as an expert, the State's counsel asked him whether he was appointed by the judge of that court, since the indictment, along with two other doctors to make an examination of appellant (presumably under section 425, Title 15, Code). He answered 'yes, sir.' Objection was made to this question. Whereupon the State's counsel withdrew the question. Defendant's counsel insisted that the court instruct the jury: whereupon the court stated, 'That is not before you, gentlemen, as a part of the evidence in this case,' and at the suggestion of the State's solicitor also stated, 'and the answer to it is excluded.'

Appellant insists that it was improper for the State's counsel in this manner to attempt to support the testimony of his witness not under attack; and that its damaging effect was not and could not have been eradicated. Reliance is had on the principle stated in the case of O'Rear v. Manchester Lumber Co., 6 Ala.App. 461, 60 So. 462, and Parker v. State, 10 Ala.App. 53, 65 So. 90. They hold that it is not error to refuse to permit a party to show lack of interest or bias of his witness until the opposite party had made an attack on him. But in the case of Jones v. State, 31 Ala.App. 504, 19 So.2d 81, the Court of Appeals noted that the trial court would not be ordinarily reversed for permitting such testimony. In so holding we think that court was correct.

In the O'Rear case, supra, the trial court had refused to permit plaintiff to ask his witness if he did not work for defendant. The Court of Appeals held that such refusal was without error. Whereas in Empire Coal Co. v. Goodhue, 200 Ala. 265, 76 So. 31, this Court held that it was not error to permit such a question to be asked and answered. This was said to be an introductory or preliminary matter, proof of which is usually permissible if advisable in the sound discretion of the trial court. 70 Corpus Juris 554 to 556, Note 1. And in Parker v. State, supra, the Court of Appeals held that it was not error to refuse to allow a party to prove that his witness was not related to any of the parties. But it was held by this Court not to be error to allow proof by a party that his witness was a widow. Cooper v. State, 63 Ala. 80. There are many illustrations of the principle digested in 19 Alabama Digest, Witnesses, k236(2), p. 700.

We do not think it would have been reversible error to have overruled the objection to the question, and have permitted it to be answered. But since it was withdrawn and expressly excluded, there is nothing in the situation which was prejudicial and should have required the court to grant the motion for a new trial.

The foregoing are the matters discussed in brief for appellant, and we find no reversible error in them. We have also considered the entire record, and find it free from error to reverse.

The judgment is affirmed.

Affirmed.

All the Justices concur.

On Rehearing.

FOSTER Justice.

The offense is alleged to have occurred on December 18, 1944. The indictment for murder was returned on January 17, 1945. The defendant was arraigned on January 22, 1945, and he plead not guilty and not guilty by reason of insanity, and his trial was set for February 13, 1945. On February 2, 1945, the solicitor filed a motion in writing, and in it referred to the fact that defendant is in jail under said indictment and had pleaded not guilty by reason of insanity, and that his trial was set for February 13, 1945, and moved the court to appoint three reputable specialist practitioners in mental and nervous diseases to examine defendant and make written report of their finding '[as to whether] there is reasonable ground to believe that such defendant was insane either, at the time of the commission of such offense, or presently.' (This is the language used in section 425, Title 15, Code.) On the same day the presiding judge made an order, reciting the facts set forth in the motion, and appointing Dr. Sewell, Wetumpka, Dr. Moore of Clanton, and Dr. Thomas of Prattville, 'to observe and examine such defendant and to make and file in this cause, as provided by law, a written report as to whether there is reasonable ground to believe that such defendant was insane either at the time of the commission of such offense or presently.' On February 11, 1945, those doctors made and had filed their report in writing expressing the opinion that after a thorough physical and mental examination made on that date defendant 'exhibits a psychopathic personality, however, not to the extent that he is insane. On examination, he is cooperative, and manifests business ability as well as personality and behavior to associate with people, and further, to conduct himself as a normal individual,' and therefore concluded that he 'was sane on December 18, 1944, and is sane on this February 11, 1945. We believe that he knows right from wrong and can distinguish between the two.' No reference was made to this report on the trial.

There is no evidence that defendant's counsel had notice of the motion or order or was present during the examination or had notice that it was to be made.

The trial was had on February 13, 1945, as previously fixed. The chief defense was as to the insanity of the defendant.

The burden being on him, he introduced much evidence to that effect. In rebuttal the State introduced lay witnesses relating to his mental status on December 18th, and then offered Dr. Thomas as an expert. He testified that he had been engaged in the practice of medicine since 1907,...