Jordan v. State, 6 Div. 86.

• Decision Date: 10 June 1932
• Docket Number: 6 Div. 86.
• Citation: 142 So. 665,225 Ala. 350
• Parties: JORDAN v. STATE.
• Court: Alabama Supreme Court

142 So. 665

225 Ala. 350

JORDAN v. STATE.

6 Div. 86.

Supreme Court of Alabama

June 10, 1932

Rehearing Denied June 30, 1932.

Appeal from Circuit Court, Jefferson County; H. P. Hefllin, Judge.

James Jordan, alias James Austin, was convicted of murder in the first degree, and he appeals.

Affirmed.

Jim Gibson, of Birmingham, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.

BROWN J.

The appellant was convicted of murder in the first degree and sentenced to suffer death by electrocution.

The indictment charges that "James Jordan, alias James Austin unlawfully, and with malice aforethought, killed Mrs C. A. Allen by striking her with a rock," etc.

The appellant's first contention is that the state's evidence wholly failed to prove the corpus delicti, and therefore, the court erred in refusing the affirmative charge requested by him in writing.

The state's witness Lena Mae Allen testified: "My name is Miss Lena Mae Allen, and I live on Red Mountain at the Birmingham Trap Shooting Club. I was living there on April 3rd of this year with my mother and father and family. My mother was Mrs. C. A. Allen. She is now dead, having died April 5th, 1931. On the 3rd day of April my mother and my little sister and I were there at home. On that day I last saw my mother in front of the ore mine about fifty years from the house. My mother and little sister were over near this ore mine. Mother was working in the garden and I was cooking. My little sister was with my mother, and mother came to the house. *** After mother came to the house and talked with me we went to look for the cow, my mother my little sister and I. We went right by the mouth of the mine, and when coming back from where the cow was, we come by the mine and this negro met us there at the mouth of the mine. I had never seen that negro before that day. Since then I have seen him lots of times in jail, and I have seen him when the officers brought him out to our house. I have also seen him in the court room this week, and this (indicating defendant) is the negro I am talking about. I now know him as James Jordan. When I saw him that day he was walking around the house; that was before my mother came from the garden. I next saw him in front of the mine, and he said he was looking for a place to make a whiskey still. I told him there wasn't place around there for him to make one, and he didn't say anything more about a whiskey still but asked for some water. We were all then going to the house, and the negro followed behind us. When he got to the house we told him we didn't have any water, but he insisted, and we gave him a drink of water. My mother and little sister and I were in the house, and he was drinking the water, and asked me my name and I told him. He asked was my daddy at home, and mother told him that he was, that he was asleep, and that he worked at night; and he told her he wasn't there when he was. He said my father wasn't in the house when he, the negro, was in the house. We were already in the house then, but this negro made us go on backwards further into the house; and he told me I had hid the money when we went by the mines, and said I was going to get it. I told him if there was any money in the mine he put it there. Then he said I was going to get it, and said it was under that big rock there. That was when we were in front of the mine; he drove us down there, through a ditch. *** When we were in front of the mine I didn't go in the mine, but mother started down in the mine. He commanded her to go in the mine, and she started in. I didn't go, and he asked me wasn't I going, and I told him no. He then hit me across the head with a blackjack, and I ran, and my little sister followed. I stopped and looked back and saw him hit my little sister in the head with a rock, and I saw her fall. I saw my mother lying on the ground, and after he hit my little sister with a rock, he was holding a large rock up above her head. My mother looked like she was unconscious. *** I looked back and saw my mother lying on the ground by the side of the mine, and she was bleeding. I didn't move: I stood there and he come up to me after my mother and little sister couldn't speak.-or they didn't."

Mr. Moore testified that he was the family physician of C. A. Allen; that when he reached Mrs. Allen, soon after her injury, there were contusions and abrasions on her face and head; that the "eyes were swollen closed, and her features were unrecognizable"; that there were many contusions on her chest and her lungs were full of blood when he picked her up; that he carried her to the hospital and had X-ray views taken of her head, and that these X-rays showed that her skull was fractured; and that she died within thirty-six hours after she was carried to the hospital.

This evidence, with the legitimate inferences which it was the province of the jury to draw, if believed by them beyond a reasonable doubt, shows the death of the person alleged to have been killed, and that said death was caused by criminal agency, as alleged in the indictment-the corpus delicti. Shelton v. State, 217 Ala. 465, 117 So. 8; Ratliff v. State, 212 Ala. 410, 102 So. 621; Watson v. State, 217 Ala. 164, 115 So. 101; Daniels v. State, 12 Ala. App. 119, 68 So. 499; 13 R. C. L. 736, §§ 40-42; 7 R. C. L. 774, §§ 2-4.

This evidence also goes to identify the appellant as the culprit. The affirmative charge requested by the defendant was, therefore, refused without error.

The appellant's next contention is that the court, over timely objection, allowed the state to offer evidence going to show that immediately following the assault on the mother and little sister of the witness Lena Mae, rendering them unconscious, the appellant raped the witness and stabbed her with a knife, and the attending circumstances of the crime.

In Miller et al. v. State, 130 Ala. 1, 30 So. 379, 383, an appeal from a conviction for murder, the court ruled: "Other offenses are allowed in evidence to show a motive for committing the offense under investigation. The existence of this motive depends upon the inquiry whether the defendants committed the other offenses, and, of course, proof that [he] did commit them must needs involve evidence as to the particulars of those offenses,-evidence of the several acts which enter into and constitute them." Powell v. State, 219 Ala. 557, 123 So. 34.

The evidence held to have been erroneously admitted in Oakley v. State, 135 Ala. 15, 33 So. 23, was not the...