Kroell v. State
| Decision Date | 14 April 1904 |
| Citation | 139 Ala. 1,36 So. 1025 |
| Parties | KROELL v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Shelby County; A. H. Alston, Judge.
Frank Kroell was convicted of murder, and appeals. Affirmed.
When the case was called for trial, the defendant's counsel announced that he was not ready, and moved for a continuance because of the absence of Drs. J. T. Searcy and W. D Partlow, superintendent and assistant physician respectively, of the Alabama Insane Hospital at Tuscaloosa at the same time stating to the court that said witnesses had been regularly subp naed for the defendant; that interrogatories had been regularly filed and commissions issued to take the depositions of said witnesses, but said depositions had not arrived. Upon the hearing of this motion it was further shown that Drs. Searcy and Partlow resided more than 100 miles from the county seat of Shelby county according to the usual mode of travel; that the defendant was arraigned on March 26, 1903, and Wednesday of the succeeding week, which was the 1st day of April, was the day set for his trial; that the interrogatories propounded to the witnesses Searcy and Partlow were not filed until Saturday preceding the Wednesday; that Henry A. Jones, Esq., Henry B. Foster, Esq., and J. J. Mayfield, Esq., were named as commissioners in the alternative, in the commission which was issued with said interrogatories; that neither of the attorneys named in the commission consented to serve as commissioners, and so notified the attorneys for the defendant, and asked if the interrogatories and commission should be turned over to one Fleetwood Rice, Esq., a reputable attorney at the Tuscaloosa bar; that the attorneys for the defendant directed that the commission and the interrogatories should be turned over to said Rice, who proceeded to take the depositions of said witnesses. These depositions had not been returned to the court at the time the case was called for trial. The solicitor objected to the granting of the motion of the defendant for a continuance, upon the grounds that the state's witnesses were out of the jurisdiction of the court; that it appeared they were practicing physicians, whose depositions might have been taken in due time if diligence had been used; and that it was shown that no diligence had been used in order to obtain the depositions of said witnesses. Thereupon the court overruled the defendant's motion for a new trial. The attorneys for the defendant then asked the court to put the state upon a showing as to what the witnesses Drs. J. T. Searcy and W. D. Partlow would testify if present. The solicitor objected to the granting of said motion, upon the ground that no diligence was shown to have been exercised by the defendant to secure the depositions of said witnesses. The court overruled the motion of the defendant's counsel and declined to put the state upon the showing, and to this ruling the defendant duly excepted.
It was shown by the evidence in the case that the deceased, Walter S. Cary, was killed on Saturday afternoon, December 14, 1901, at dusk and just before dark; that he was killed by being shot by the defendant, Frank Kroell; that the shooting occurred on the streets in the town of Montevallo; that Frank Kroell and his brother George Kroell, together with their mother, were walking across the street; that Frank Kroell was carrying a double-barreled gun in his hand; that, just before they reached the place where Cary was standing, two gun shots were fired and two pistol shots were fired at said Cary; that these shots were fired in rapid succession, some of the witnesses testifying that they were fired from different positions on the street; that, after Cary fell, Frank Kroell walked to where he was lying, and fired a 38-caliber pistol ball into the back of his head. There was some evidence introduced tending to show that the defendant and the deceased had had a difficulty two or three hours before the homicide occurred. There was evidence for the defendant tending to show that, as the defendant and his brother and mother walked near to Cary, the latter remarked with an oath, "Now I have you," and leveled his pistol at the defendant, whereupon the defendant shot at him, discharging both barrels of the gun. The defendant also introduced testimony tending to show that he was of unsound mind and insane at the time of the killing.
Dr. K. F. Lane was examined as a witness for the state, and testified to having seen the shots fired which killed the deceased, and to having examined the deceased after he was shot. This witness testified that he had been a practicing physician since 1895; that he had known the defendant for three or four years, during which time they both lived at Montevallo; that he had professional and business transactions with the defendant, had conversed with him and seen him almost daily on the streets of Montevallo, and had seen him have business transactions with other people; and that at the time of the killing the defendant was engaged in the business of conducting a large livery stable in Montevallo. Thereupon the solicitor asked Dr. Lane the following question: "From your acquaintance, your professional and business transactions with him, from what you saw him do and heard him say, and what you know of his business transactions with other people during the time that you knew him, up to and including the 14th day of December, 1901, was he, in your opinion, sane or insane?" The defendant objected to this question upon the ground that no evidence had been introduced by the defendant as to his insanity. The court overruled the objection, and to this ruling the defendant duly excepted, and, upon the witness answering that in his opinion the defendant was sane, the defendant moved to exclude the answer, and duly excepted to the court overruling his motion.
Dr. A. B. Horn, as a witness for the state, testified that he was with Dr. Lane at the time of the shooting and witnessed it; that there were two gun shots and two pistol shots fired, all of which were fired in very close succession, and were fired from different positions in the street. The solicitor then asked the witness the following question: "Judging from the position where you saw the flashes and the close succession of the shots, in your opinion could one man have fired all the shots?" The defendant objected to the question because it called for the conclusion of the witness, and because it called for illegal, immaterial, and irrelevant evidence. The court overruled the objection, and the defendant duly excepted. Upon the witness answering that in his opinion one person could not have fired all the shots, the defendant moved to exclude the answer, and duly excepted to the court overruling his motion.
T. M McPhail, a witness for the state, testified that he was at the store of George Kroell at the time Cary was shot; that shortly after the shooting the defendant walked into the store, shook hands with a man named Smith, and told him "Good bye," at the same time saying, On the cross-examination of the witness McPhail he testified that the deceased, Walter Cary, and the defendant, Frank Kroell, had a difficulty three or four hours before Walter Cary was killed, which occurred at the express office. The attorney for the defendant then asked the witness, during his cross-examination, if he saw Cary with a pistol at that time, and the witness answered that he saw Cary with a pistol shortly after the difficulty. Upon redirect examination of this witness the solicitor for the state asked him the following question: "Did you see Frank Kroell with a pistol in his hand before or after the difficulty in the express office, but not during such difficulty?" The defendant objected to this question because it called for the particulars of a former difficulty and for illegal and irrelevant testimony. The court overruled the objection, and the defendant duly excepted. The witness answered that he did see Frank Kroell at the express office with a pistol in his hand before the difficulty and after the difficulty, but did not see him with a pistol during the difficulty. The defendant moved to exclude this answer, and duly excepted to the court overruling his...
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