Jarrell v. State, 5 Div. 445.

• Decision Date: 30 June 1948
• Docket Number: 5 Div. 445.
• Citation: 36 So.2d 336,251 Ala. 50
• Parties: JARRELL v. STATE.
• Court: Alabama Supreme Court

36 So.2d 336

251 Ala. 50

JARRELL v. STATE.

5 Div. 445.

Supreme Court of Alabama

June 30, 1948

R C. Wallace and C. S. Moon, both of LaFayette, for appellant.

A. A. Carmichael, Atty. Gen., and Jas. T. Hardin Asst. Atty. Gen., for the State.

LAWSON Justice.

Appellant was convicted of the murder of his wife and his punishment fixed at life imprisonment.

Counsel for appellant strenuously insist that the proof is insufficient to establish the corpus delicti, and that the affirmative charge was due to be given at the defendant's request. In every criminal prosecution, of course, the burden is on the State to prove beyond a reasonable doubt that the crime charged has been committed and that the accused is the person who committed it. Hill v. State, 207 Ala. 444, 93 So. 460; Ratliff v. State, 212 Ala. 410, 102 So. 621. In Hill v. State, supra, it was said: 'Circumstantial evidence may afford satisfactory proof of the corpus delicti; and if any facts are shown from which the jury may reasonably infer that the crime has been committed, the question must be submitted to the jury, and other evidence tending to implicate the accused is thereby rendered admissible.' 207 Ala. 446, 93 So. 461.

The defendant and his wife lived in a small house belonging to one Tom Lindsey. Lindsey's home was from 150 to 200 yards distant from the house occupied by defendant and his wife. The road to the defendant's house practically passed through the Lindsey yard. The house occupied by defendant consisted of a front porch and three rooms. There was a door leading into each of the front rooms from the porch. As viewed from the front, the right front room was a bedroom and the left front room was used as a kitchen. Immediately back of the bedroom was a room referred to in the evidence as a 'shed room.' There was a 'stack' chimney between the two front rooms. There was a doorway between the two front rooms situated toward the front of the house. A closet was built in the bedroom between the chimney and the back wall of the room.

Tom Lindsey, a witness for the State, testified that he arrived at his home around 11:15 on the night of August 25, 1947; that he noticed that lights were on in the defendant's home; that he retired soon after getting home and a short time after he went to bed some one called him from the Jarrell house but he did not respond; that at approximately 3:30 a. m. the following morning, August 26th, he awoke and observed a car leaving the home of appellant and that shortly thereafter two cars passed through his yard enroute to defendant's house; that within a few minutes a sister of defendant came to his house and asked him to go to defendant's home; that upon arriving there he saw Mrs. Jarrell, fully dressed, lying on the kitchen floor, her feet on the hearth and her body extending toward the center of the room, with her head resting on a pillow; that he touched the body of Mrs. Jarrell and that it was cold and he concluded she was dead; that the defendant was drunk and sitting beside the body of his wife; that defendant made no statement at that time as to his wife's condition; that he did not see a gun or firearm of any kind in the kitchen but did see a .22 caliber rifle in a corner of the bedroom; that he had seen a rifle there on previous visits; that he did not hear a rifle shot at any time during the night.

A physician who was summoned by Lindsey arrived at the defendant's home about 5:00 a. m. When he arrived the body of Mrs. Jarrell was in the same position as testified to by Lindsey. Rigor mortis had set in. He made no examination at that time to discover the cause of death. This physician testified that when he arrived there the defendant 'had the appearance of a man who had been drinking for a long time.'

The body of Mrs. Jarrell was removed to an undertaking establishment shortly after the physician pronounced her dead. In removing the clothing on the body the undertaker discovered a small hole in the dress and slip. His examination of the body disclosed 'a gunshot wound.' The undertaker notified the physical and the sheriff of the county.

An assistant State Toxicologist, Mr. Shoffeitt, was immediately contacted. He performed an autopsy on the body of the deceased and made certain tests in connection with the deceased's clothing. He testified in behalf of the State. The evidence shows that he was an expert concerning the matters about which he expressed an opinion. From his testimony it appears that he performed the autopsy at about 10:00 on the morning of August 26, 1947, which was approximately eight to ten hours after death, according to his opinion. The only sign of physical violence which he found on the body was a hole in the chest approximately three-sixteenths of an inch in diameter. As a result of cutting into the body and probing the hole in the chest he found parts of a .22 caliber hollow-point lead bullet, which had severed a large blood vessel, and the abdominal cavity was filled with large clots of blood. He expressed the opinion that death resulted from internal hemorrhages caused by the bullet severing the blood vessel. Powder burns were found on the deceased's dress and slip. Based on the nature of the wound and the characteristics of the powder burns on the clothing, he expressed the opinion that when the rifle was fired its muzzle was not in contact with the dress, but was from six to eighteen inches away.

After completing the post-mortem examination, Mr. Shoffeitt, accompanied by the sheriff of the county and the State investigator, went to the defendant's home. They arrived there about 11:20 a. m. Defendant was not at home. The house was locked but the officers were let in by one Adams, who had a key. They made a thorough search of the house but found no firearms of any kind. They did find a box of .22 long hollow-point cartridges. They also found two .22 caliber 'hulls,' the examination of which disclosed that they had been fired from the same rifle. One of the 'hulls' was found near a fire screen on the hearth in the bedroom and the other was under a chair which was in a corner of the bedroom near the bed. A freshly made 'bullet hole' was discovered in the corner of the room diagonally opposite from the corner where one of the 'hulls' was found. There was 'a little piece or stick of wood stuck in that hole.' A .22 caliber 'bullet' was found on the floor in close proximity to the place where the 'bullet hole' was located.

The officers then proceeded to the home of defendant's father, where they questioned defendant. At that time he appeared to be suffering from the effects of drinking. He insisted that he did not shoot his wife. Although he refused to sign a written statement, he did answer questions concerning the events of the preceding night. He said that during the early hours of the night he and his wife rode into town and that she secured a rifle at Hamp Smith's filling station for the purpose of going fox hunting. As to what transpired after they returned to their home, he stated first that after he had gone to bed he heard his wife fall and found her lying on the floor of the kitchen and placed a pillow under her head, thinking that she had fainted, inasmuch as she was subject to such attacks. He said he was physically unable to put her in bed. When asked to explain the fact that a bullet had been found in the body of his wife, he said he remembered being awakened by a discharge of a firearm and on going into the kitchen he found the body of his wife lying on the floor. He examined her for gunshot wounds but found none. When apprised of the fact that two empty .22 caliber 'hulls' had been found in the house and that, in addition to the bullet which was located in the body of his wife, another bullet had been found on the floor of the closet in the bedroom, he stated that he remembered that before he went to bed his wife was 'playing with an old army rifle and that she fired a round'; that when he went to bed his wife was reading and that later he was awakened by the rifle shot and on going into the kitchen he found her lying on the floor. According to his statement after he and his wife returned home after their trip to town, no one was present in the house except them. To one of the officers he stated that after he was awakened by the shot and went into the kitchen he saw the rifle lying by the side of his wife and picked it up and brought it back into the bedroom. As before indicated, the questioning of defendant first took place at the home of his father, where he told them that he had placed the rifle back in the bedroom and that he would go with them to his home and show them where the rifle was. Defendant accompanied the officers to his home and pointed out the place in the bedroom where he had stated he had placed the rifle, but the rifle was not there. The defendant also told the officers in effect that after the body of his wife was removed to the undertaking establishment he left his home with his mother and sister and went to the home of his father, where he remained until taken back to his home by the officers.

The statements made by the defendant were merely by way of explanation and exoneration; they were not in the nature of a confession. Out of an abundance of caution, however, the court required the State to show that the statements were voluntarily made. We think they were clearly admissible. Ratliff v. State, supra.

The defendant did not testify himself. The theory of defense seems to have been that the deceased took her own life. To that end he offered evidence to the effect that on the night of August 25th, the defendant and the deceased arrived at Hamp Smith's filling station about 8 o'clock in defendant's car. Defendant was drunk and the deceased...