Lambert v. State

• Citation: 234 Ala. 155,174 So. 298
• Decision Date: 13 May 1937
• Docket Number: 1 Div. 947
• Parties: LAMBERT v. STATE.
• Court: Alabama Supreme Court

174 So. 298

234 Ala. 155

LAMBERT v. STATE.

1 Div. 947

Supreme Court of Alabama

May 13, 1937

Appeal from Circuit Court, Monroe County; F.W. Hare, Judge.

Owen alias Orin, alias Oren, Lambert was convicted of first-degree murder, and he appeals.

Affirmed.

C.L Hybart, of Monroeville, for appellant.

A.A Carmichael, Atty. Gen., for the State.

THOMAS Justice.

There is no question presented as to the indictment, arraignment, venire, or of the entering upon the trial.

The record is sufficient and indicates a procedure within the law. The verdict of guilty of murder in the first degree, as charged in the indictment, and the fixing of the punishment at life imprisonment "was pursuant thereto and in due form." Ruff v. State, 229 Ala. 649, 159 So. 94. The judgment was duly entered thereon.

There were many given charges, instructing as to reasonable doubt and presumptions of innocence. Charge 16 requested by the defendant was duly refused. It was argumentative and sufficiently covered by the oral instructions of the court and by defendant's written charges. Moreover, the charge uses the words "with the theory that the defendant is innocent." The charge was well refused for the failure to sufficiently hypothesize a reasonable theory. Ledlow v. State, 221 Ala. 511, 513, 129 So. 282; Goocher v. State, 227 Ala. 337, 343, 149 So. 830; Rayburn's Jury Charges, 296 et seq.

The full measure of proof that the law exacts may not be rested upon a false or superficial theory of a defendant's innocence.

Pitman v. State, 148 Ala. 612, 42 So. 993; Ledlow v. State, supra.

The witness Travis had described the physical condition in which he found the deceased at the time and place of his convulsions and immediate death: described the first convulsion deceased had, and said he "saw two convulsions," something like five or six minutes between them. Witness asked by the state's counsel to "describe to the jury the second convulsion that he had," answered that "Mr. Luker stepped around and touched him on the arm like that and he had another one the same way." Defendant's counsel moved to exclude the answer--"that he had another one the same way"--as a conclusion of the witness. To this the court inquired: "Do you mean by that, that he evidenced the same bodily movements as you just described in the first convulsion?" The witness answered this question in the affirmative, whereupon the court overruled the motion and the defendant excepted. The record states "that this happened just as Mr. Luker touched him." In this ruling there was no error. The witness proceeding further, described the physical condition of the deceased, viz., that he rared his head back and jerked his arms up to his breast; that he seemed to have his teeth gritted close together; that his eyes were set, his legs right straight out; adding, "That the two convulsions seemed to last 2, 3 or 4 minutes the best he could judge."

The state offered the photographs of the deceased made just before the time of his death and defendant objected to such action and reserved an exception thereto. The photographs were admissible. In this ruling there was no error. The cross-examination of the witness indicated a line of defense that death was the result of natural or accidental causes, other than that resulting from poison alleged to have been administered with whisky within a reasonable time before death.

The several admissions against interest were introduced in evidence after due predicates were laid. Fincher v. State, 211 Ala. 388, 100 So. 657; Curry v. State, 203 Ala. 239, 82 So. 489; Stone v. State, 208 Ala. 50, 93 So. 706; Huffman v. State, 130 Ala. 89, 30 So. 394; Morton v. State, 206 Ala. 300, 89 So. 655; Elmore v. State, 223 Ala. 490, 137 So. 185.

It was proper to allow the witness Dr. D.D. Cole, after his qualification as an expert, to express an opinion upon the established facts as to the cause of decedent's death. The record relates the following, in the course of examination of this witness:

"Q. Now, Doctor, I will ask you this question. Assuming that a man who has had convulsions at intervals, three or more of them, each lasting from one to three minutes, followed by a partial relaxation of the muscles of the body, during the period of relaxation he is conscious, during the convulsions his head is drawn back, his teeth clinched, mouth drawn in a sardonic grin, eyes fixed, during the convulsion his body is arched and rigid and he complains of pains around the heart, the convulsions are brought on by sudden noise or touching of the body, no evidence or history of any bodily injury, he was never known to have had epilepsy or organic heart trouble, no history or evidence of any recent cut or wound on his body, the man dies during a last convulsion, what, in your professional opinion, caused his death? ***

"Q. Answer the question, Doctor. A. Well, you have described a death by strychnine poisoning.

"Q. So in your medical opinion this would indicate a death by

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