Kilpatrick v. State

• Decision Date: 14 May 1925
• Docket Number: 4 Div. 136
• Citation: 104 So. 656,213 Ala. 358
• Parties: KILPATRICK v. STATE.
• Court: Alabama Supreme Court

104 So. 656

213 Ala. 358

KILPATRICK v. STATE.

4 Div. 136

Supreme Court of Alabama

May 14, 1925

Rehearing Denied June 18, 1925

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

Burl Kilpatrick was convicted of murder in the first degree, and he appeals. Affirmed.

Refusal of charge covered by court's oral charge is not error.

The witness Hicks testified that about a month before the killing he heard deceased say to defendant that he (defendant) seemed to be drinking a right smart, and that, just after deceased left, witness heard defendant say, "If I had my pistol I would kill the ______ and get through with him to-day."

Witness Turner testified that just before the shooting defendant came into the place where witness was working and said, "You know, there is a bunch been talking about me; *** I am going to kill some ______ if he doesn't let my business alone;" that defendant turned and walked out, but came back again and said, "I am going up town to do just exactly what I told you I was going to do;" that witness asked defendant whom he had reference to, and defendant replied that it did not make any difference, and that "you will hear from me in a short time."

Defendant propounded to his witness, Dr. Underwood, the following question, the state's objection to which was sustained:

"Assuming that Dr. Ray had made some 40 odd visits to see Mr. Kilpatrick, while he was in jail, from May 13th till September 26th, of last year, and has observed him and treated him, and that he has been his family physician for some 10 or 12 years preceding that time, and that he has on numerous occasions treated him for syphilis, not over a period of 10 years next preceding the time Mr. Knox was killed, and that he has visited him some 3 weeks before Mr Knox was killed, and assuming that Dr. Ray had testified in this case that defendant was insane, and in his judgment was afflicted with what you call a syphilitic spine, and that he had been sent to Hot Springs for treatment, and if Dr. Ray had testified that the man, while he was in jail, was of unsound mind, and that about 3 weeks preceding the time Mr Knox was killed that he (Dr. Ray) was called to attend him, and that he appeared then, in his judgment, to be of unsound mind, and that from time to time he had complained to him and discussed with him the case of syphilis that he had been afflicted with, and was afraid that it had been causing his troubles from time to time, and that other witnesses, including the sheriff of the county, had testified that the defendant was insane, and that other witnesses had testified that before Knox was killed the defendant was insane, and there was testimony also tending to show that a short while before the killing the defendant was crazy, that he did not know what he was doing or talking about, then in your judgment, assuming those facts to be true, and from what you know of this defendant, would you say that he was a man of unsound mind?"

These charges were refused to defendant:

"(20) The court charges the jury that, if you believe the testimony, the defendant was drunk at the time he is alleged to have made the threats of violence testified to by the state's witness Hicks."

"(21) The court charges the jury that, if you believe the testimony, the defendant was crazy drunk shortly before the alleged shooting when with the witness Turner."

"(22) The court charges the jury that, if you believe the testimony, the defendant was crazy drunk at the time of the alleged shooting of the deceased, John L. Knox."

"(26) The court charges the jury that the testimony as to the shooting of J.N. Jernigan by the defendant is only to be considered by you, in connection with all the other testimony, on the question of the mental condition of the defendant, and not as to the alleged charge of the murder of John L. Knox, deceased."

"A2. The court charges the jury that in the case you must not consider any assault that defendant may have made on J.N. Jernigan as to any alleged assault which the defendant may have made on John L. Knox, deceased."

"A. The court charges the jury that if, from all the testimony, you are reasonably satisfied that the witness Claude Coursey, for the state, has testified willfully false in this case, as to his being in the store of J.L. Knox & Co., at the time of the killing, the burden in the case being on the state to show that he was at that place at that time, then you will be justified in discarding all the testimony of such witness altogether, as to all facts testified to by him in the case."

"A1. The court charges the jury that if, from a consideration by you of all the testimony, should any member of the jury have a reasonable doubt of the guilt of the defendant arising out of any fact as to whether Claude Coursey was present at the time and place of the killing, you cannot find the defendant guilty of any offense in the case."

"A7. The court charges the jury that if, from the testimony and facts in evidence, you are reasonably satisfied that the defendant was drunk at the time that John L. Knox was killed, that at and immediately before the time of such killing the defendant was crazy drunk to the extent that he would not know what he was then talking about, and that such condition had been proximately the result of indulgence in the use of alcoholic beverages or intoxicating like beverages, then you may be justified in finding that the defendant, at the time of the killing, was of unsound mind, and did not know right from wrong, or, if knowing, that he was unable, from the impelling force of his defective mental condition, to choose between the right and wrong, and thus find the defendant not guilty on his plea of insanity."

"(8) The court charges the jury that if, from a consideration of the testimony, you are reasonably satisfied that the defendant was insane from the time of the killing of the deceased until shortly before the trial of the cause, that the type of insanity was of a prolonged and severe type, and that at the time of the killing the defendant was intoxicated to the extent that he did not know what he was doing and would not know what he was talking about, that he had been adjudged insane by judicial order and sent to the Alabama Insane Hospital of Alabama, at Tuscaloosa, Ala., where he remained for several months, when considered with all the other testimony, then such facts are sufficient to justify the presumption that the defendant was, at the time of the killing, insane or of unsound mind to the extent that he did not know right from wrong, or knowing, that he was unable, from the impelling force of such, to choose as between right from wrong."

A. Whaley and E.O. Baldwin, both of Andalusia, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAYRE J.

The indictment against the prisoner was returned on June 4, 1923, by a grand jury which had been duly organized prior to February 26, 1923, and on the last-named day had been recessed subject to the order of the court. By an order spread upon the minutes of the court, the previously organized grand jury were called into session on June 4th, and on that day, as we have noted, returned the indictment in this cause. The proceeding thus shown was in accord with the statute (section 8665 of the Code of 1923), and was free from error.

Defendant was on trial for the killing of John L. Knox. The evidence objected to in assignments of error 39 and 40 tended to show threats and expressions of ill will by defendant against deceased, and was properly allowed to go to the jury. The fact that one of these threats was conditional, and that the other was directed against some unnamed person, who is referred to merely as being of canine lineage on the maternal side, did not render them inadmissible. Cribbs v. State, 86 Ala. 613, 6 So. 109; Ford v. State, 71 Ala. 385. The jury could have found no difficulty in inferring that deceased was the person against whom such threats were intended.

It appeared that defendant, a few moments after he had shot and killed Knox, also fired two shots at one Jernigan, a policeman of the town of Andalusia, and wounded him. There was no error in allowing the sheriff, Livings, to testify that defendant's first remark after he was taken into custody--a few minutes after the killing of Knox and the wounding of Jernigan--was: "That" (referring to Jernigan with an opprobrious epithet) "was the ______ I wanted." This remark showed hostility to Jernigan ( Smith v. State, 183 Ala. 25, 62 So. 864) and if defendant, when killing Knox, was venting his hostility against Jernigan, it was well for the jury to be enabled properly to characterize the act, even though the act and its malice were directed against different persons.

Defendant pleaded "not guilty by reason of insanity," as well as "not guilty" and the burden of the evidence introduced by him was directed to the proposition that he was insane at the time. But this was no reason why the question to Livings--who for some time had him in custody, and testified to his behavior during that time--seeking to show that defendant's case was as bad as any he (the sheriff) had ever had in jail, should have been allowed. Comparisons were of no consequence; the only proper question being whether defendant understood the nature of his act, or, understanding, was unable to refrain from its commission.

Sheriff Livings was properly allowed to state his opinion that defendant was sane at the time of the trial, and had been so since his return from the Insane Hospital at Tuscaloosa, to which, for a time, he had been committed shortly after the killing for which he was on trial. The probative force of this testimony as shedding light on the issue presented of insanity at the time...