Lovejoy v. State

• Citation: 34 So.2d 692,33 Ala.App. 414
• Decision Date: 03 February 1948
• Docket Number: 6 Div. 379.
• Parties: LOVEJOY v. STATE.
• Court: Alabama Court of Appeals

34 So.2d 692

33 Ala.App. 414

LOVEJOY v. STATE.

6 Div. 379.

Alabama Court of Appeals

February 3, 1948

Rehearing Denied Feb. 24, 1948.

Erle Pettus and Jackson, Rives & Pettus all of Birmingham, for appellant.

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

The following charges were refused to defendant:

'3. I charge you, gentlemen of the jury, as a matter of law that the highest type

of character is often one whose character is never discussed by those who know him or her.'

'4. I charge you, gentlemen of the jury, that every person is presumed to have a good character and the fact that the character of the person is never discussed among those of his or her acquaintance, or by others in the community in which he or she lived, is the best evidence that such person is of good character.'

'9. The Court charges the jury that you are not bound by the opinion of experts, or by the apparent weight of evidence, but you may give your own conclusions.' (Similar to 8 and 10-16 incl.)

'21. The Court charges the jury that if there is a probability of the innocence of the defendant, you must acquit him.'

'22. The Court charges the jury that although there may be no probability of the innocence of the defendant, yet, if there is in the minds of the jury a reasonable doubt of his guilt, it is the duty of the jury to give him the benefit of the doubt and acquit him.'

'29. The Court charges the jury that if there is one single fact proved to the reasonable satisfaction of the jury which is inconsistent with the defendant's guilt this is sufficient to raise reasonable doubt and the jury should acquit the defendant.'

'40. The Court charges the jury that this defendant is entitled, as matter of right and as a matter of law, to have each and every member of the jury trying his case consider and weigh the evidence in this case for himself, and to reach his own conclusion as to the sufficiency of the evidence in the case; and the Court charges the jury that unless each and every juror is separately convinced beyond all reasonable doubt and to a moral certainty that defendant is guilty as charged, then in that event, you cannot convict him.'

'41. The Court charges the Jury that a probability of the defendant's innocence is just ground for a reasonable doubt as to his guilt.'

CARR Judge.

This is the third appeal in this case. Lovejoy v. State, 31 Ala.App. 244, 15 So.2d 300; Lovejoy v. State, 32 Ala.App. 110, 22 So.2d 532.

In the former opinions will be found a sufficient delineation of the evidence to suffice for the purposes of this opinion.

In the instant case the trial resulted in a conviction for murder in the second degree and the imposition of ten years' punishment.

In his opening statement to the jury the solicitor read the indictment without any comment. Appellant's attorney stated in response that the defendant 'pleads not guilty and he pleads not guilty by reason of self-defense.' The court disallowed counsel to also state to the jury what he expected the evidence to show. This matter was addressed to the sound discretion of the judge. We do not think that it was arbitrarily abused. Stewart v. State, 245 Ala. 511, 17 So.2d 871; Burns v. State, 226 Ala. 117, 145 So. 436.

It is cogently urged in oral argument and in brief that the attitude and conduct of the judge during the progress of the trial were highly prejudicial to the defendant and that we should base error for this reason. There was no motion for a new trial filed. We do not, therefore, make review of this insistence from this approach.

The court exercised his privilege to ask a witness a few questions. In this we do not find any invasion of the rights of the accused. When objections were interposed, the judge made this statement: 'I think I have a right to direct his attention to it, and, of course, you can make your objections to my questions just like anybody else.' Register v. State, 19 Ala.App. 11, 94 So. 778; Holmes v. State, 22 Ala.App. 373, 115 So. 849.

The witness, as an expert, had testified that a bullet entering the human body showed a smooth surface and its exit left a 'jagged hole.' Subsequently to this testimony and while the same witness was being interrogated, the record discloses:

'(By the solicitor) Q. I want to ask you another question before it gets out of mind. How many jagged holes did you see in that body?

'Mr. Pettus: We object to that, if the court please.

'The Court: You mean by that exit holes?

'Q. Exit holes?

'Mr. Pettus: We object to that, if the court please. We object to the qualification 'exit' because we insist the jagged doesn't mean that.

'The Court: Overruled.

'Mr. Pettus: We except.

'A. Two.

'Q. You saw two jagged exits? Is that right? A. Yes, sir; yes, sir.

'Mr. Pettus: Now we move to exclude the answer, if the court please, on the ground that the two jagged exits----

'The Court: Overruled.

Mr. Pettus:--on the ground that the witness couldn't possibly know what was an exit.

'The Court: Overruled.

'Mr. Pettus: We object to the statement of the court when he asked about jagged wounds, the court said, 'You mean exit?' We except.

'The Court: I was asking him a question. Overruled.'

With reference to this incident it is stressed that the court expressed his opinion on what constitutes an exit hole. It is seriously doubtful that there is any question here presented for our review on the matter about which complaint is made. There are no grounds stated in support of the objection. But, all of this aside, we are convinced that in the light of the preceding testimony we would not be authorized to charge harmful error here.

In responding to an objection on the ground that the question called for hearsay evidence and in explaining his ruling, the court remarked: 'Most experts get their knowledge partly from hearsay, as well as actual experience.' The statement was perhaps inappropriate, but clearly we should not base error for this cause.

A witness was asked to describe a butcher knife which he claimed the deceased had at the time of the killing. In response the witness volunteered the statement: 'It should have been in court.' The solicitor stated: 'I did not ask you that.' The judge admonished: 'Don't make any more remarks like that. You answer the question. Confine your testimony to that.' Obviously and unquestionably the court had a right to thus caution the witness.

We are fully persuaded from a careful and considerate study of the record that the judge demonstrated his desire to afford the defendant a fair and unprejudiced trial. This is evidenced by the response to many objections and motions throughout the progress of the trial and the further fact that out of one hundred and seventy-five written charges, which were tendered by the accused, the court gave eighty-four of these. The oral charge of the trial judge covers seventeen type-written transcript pages.

The State introduced a witness by the name of Propst who examined the deceased at the hospital soon after the affray. With reference to his qualifications as an expert to testify to the nature and character of the wounds in question, it was shown that he had been a member of the homicide squad of the Birmingham Police Department for a number of years; that during his tenure he had been afforded opportunities to observe and examine many bodies upon which pistol wounds had been inflicted; that he served in one world war and this gave occasions of contact and observation of wounded bodies and firearms; that he had carried a pistol of the same caliber and make as the one with which the deceased was shot, for twenty-five years; that he had fired the pistol a number of times and had observed the entrances and exits of its bullets by firing into white side meat. There was other evidence, which we will not attempt to delineate, which tended to show his expert qualifications.

There were a great number of objections interposed while the witness was being interrogated with reference to his knowledge, experience, etc. These questions related in the main to matters which had a tendency to establish the competency of the witness, and we do not find in any of these rulings any error which could inure to the injury of the appellant.

Whether or not a witness is shown to possess the requisite qualifications to give evidence as an expert is a matter of preliminary inquiry, and the sufficiency vel non is largely within the enlightened discretion of the trial judge. On appeal the rulings thereon will not ordinarily be disturbed unless a clear abuse is shown. Hicks v. State, 247 Ala. 439, 25 So.2d 139; Kozlowski v. State, 248 Ala. 304, 27 So.2d 818; Stewart v. Sloss-Sheffield Steel & Iron Co., 170 Ala. 544, 54 So. 48, Ann.Cas.1912 D, 815; Wilson v. State, 31 Ala.App. 21, 11 So.2d 563.

We hold that no abuse of discretion appears in allowing the witness Propst to testify that a pistol bullet entering the human body made a smooth surface and that a jagged hole indicated the place of exit. This is in harmony with the holding in Rohn v. State, 186 Ala. 5, 65 So. 42, 43:

'As illustrative of the position of the deceased when shot, and for the purpose of contradicting defendant's testimony in that regard, it was clearly competent for the state to prove that bullet wounds are characteristically different at the points of entry and exit, respectively, and what that difference is; and any one who has often observed and examined such wounds is a competent witness thereto.'

Without error, also, the witness was permitted to state that he observed on the body of the deceased a smooth-surfaced wound in the back and a jagged one in the front.

It appears to us that in the final analysis, if error is...