Manning v. State

• Decision Date: 29 March 1928
• Docket Number: 6 Div. 891
• Parties: MANNING v. STATE.
• Court: Alabama Supreme Court

116 So. 360

217 Ala. 357

MANNING v. STATE.

6 Div. 891

Supreme Court of Alabama

March 29, 1928

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

Homer R. Manning was convicted of murder in the second degree, and he appeals. Reversed and remanded.

John W Inzer, Jr., and Prosch & Prosch, all of Birmingham, for appellant.

Charlie C. McCall, Atty. Gen., and J.W. Brassell, Asst. Atty. Gen and Fort, Beddow & Ray, of Birmingham, for the State.

THOMAS J.

The burden of proof or the duty of going forward with the evidence to establish, to the reasonable satisfaction of the jury, his plea of not guilty by reason of insanity, rested upon the defendant. Parrish v. State, 139 Ala. 16 36 So. 1012.

The rule of criminal liability vel non under such statutory plea is as was stated in Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am.Rep. 193, and adhered to in this jurisdiction. Wilkes v. State, 215 Ala. 428, 110 So. 908; Anderson v. State, 209 Ala. 36, 95 So. 171; Hall v. State, 208 Ala. 199, 94 So. 59; Whittle v. State, 213 Ala. 301, 104 So. 668; Lambert v. State, 207 Ala. 190, 92 So. 265; Umble v. State, 207 Ala. 508, 93 So. 531.

The basis for the insistence of insanity under his plea was merely the action of appellant just prior to and at the time of the homicide. This was not sufficient to bring defendant within the rule of Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am.Rep. 193, and Anderson v. State, 209 Ala. 36, 95 So. 171. As observed in Wilkes v. State, supra, defendant may have had "good reason for a state of mind with reference to" his wife and deceased a few minutes before the homicide, yet emotional or so-called moral insanity not associated with disease of the mind, as an excuse for crime, had no recognition in the law of this state. Anderson v. State, 209 Ala. 36, 95 So. 171; Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am.Rep. 193.

Affirmative instruction should not be given when there is any material fact to be inferred, or adverse and reasonable inferences of fact that may be drawn from the evidence by the jury. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135; Amos v. State, 73 Ala. 498; Carter v. State, 44 Ala. 29; Weil v. State, 52 Ala. 19. However, there was no reversible error in the giving of the general affirmative charge to the jury that they need not consider the plea of insanity as there was no evidence to sustain that plea. This was not invasive of the provisions of section 9507 of the Code, as to charging upon the effect of the testimony, not being required to do so by one of the parties. Peck & Bro. v. Ryan, 110 Ala. 336, 17 So. 733; Thomas v. State, 150 Ala. 31, 43, 43 So. 371; Cole Motor Car Co. v. Tebault, 196 Ala. 382, 72 So. 21; Brilliant Coal Co. v. Barton, 205 Ala. 89, 87 So. 830; Mann v. State, 20 Ala.App. 540, 103 So. 604.

The charge condemned in Seaboard Air Line v. Savage, 215 Ala. 96, 109 So. 748, as being upon the effect of the evidence, is stated to have had such effect under the disputed issues of fact raised by the testimony of the witness whose name is indicated in the opinion. It is true that no request for such charge was made by the state, that the defendant was upon the stand as a witness in his own behalf. It is further true that no exception was taken to the oral charge.

The trial court permitted the prosecuting officers to cross-examine the Mannings or read to the witnesses extracts of questions and answers from stenographic transcripts of former testimony or statements of the witnesses to law officers on investigation of the crime and preliminary trial, and to ask the witnesses if such questions were asked and answers made. The witness should have been permitted to have the whole deposition, evidence, or statement, and examine the same and declare whether or not it was the evidence or statement of that witness. And that deposition or evidence introduced, not as evidence of independent, cumulative or original evidence of fact, but for the purpose of testing the recollection of the witness, or for impeachment. The purpose or competency or limited effect of such evidence should be explained and made plain to the jury. Queen Caroline's Case, 2 Brad. & Bing. 287; Kelly v. State, 75 Ala. 21, 51 Am.Rep. 422; Gunter v. State, 83 Ala. 96, 106, 3 So. 600; Kennedy v. State, 85 Ala. 326, 331, 5 So. 300; Phoenix Ins. Co. v. Moog, 78 Ala. 310, 56 Am.Rep. 31; Humber v. State, 210 Ala. 559, 99 So. 73; Id., 19 Ala.App. 451, 99 So. 68; Lester v. Jacobs, 212 Ala. 614, 103 So. 682; Cent. of Ga. Ry, Co. v. Wilson, 215 Ala. 612, 615, 111 So. 901; Shelby Iron Co. v. Morrow, 209 Ala. 116, 95 So. 370.

As we have observed, one of these written statements, made the subject of questions on cross-examination, was that alleged to have been taken down by a stenographer, of Mrs. Manning's declarations to officers of the law and questions propounded to her, and answers, in the "preliminary trial" before Judge Abernathy. The witness stated that she never saw the statement inquired about "until it was introduced here in court"; that witness "had never read either one of those (writings) you have."

A proper cross-examination may be had to test the recollection or accuracy of the statements of a witness, and to that end, and within the rule, may be asked if such witness had not made contradictory statements to the testimony given. If the written statement or deposition theretofore given by the witness and inquired about be not introduced in evidence, if the witness requires, may inspect or read the writing to verify its authenticity and contents, though the interrogator may not introduce it, in the first place, in evidence. Shelby Iron Co. v. Morrow, 209 Ala. 116, 120, 95 So. 370; Grasselli Chem. Co. v. Davis, 166 Ala. 471, 52 So. 35; B.R.L. & P. Co. v. Bush, 175 Ala. 49, 56 So. 731; Portsmouth, etc., Co. v. Madrid, etc., Co., 200 Ala. 634,

77 So. 8. And such writing or deposition may be consulted in laying a predicate for the introduction of secondary evidence, as well as for the purpose of contradiction or impeachment. Alabama Western R.R. Co. v. Downey, 177 Ala. 612, 58 So. 918. Loudemilk v. State,

4 Ala.App. 167, 58 So. 180.

It follows that the stenographer who made the memorandum and the transcript from his notes, testifying that he took and transcribed the same fully and accurately, may have recourse thereto on a later examination or trial, and if he has no independent recollection of the contents thereof and testifies from said notes, memorandum or transcript, the same is admissible in evidence and in aid of his testimony. St. L. San Francisco Ry. Co. v. Swaney, 216 Ala. 454, 113 So. 410; B.R.L. & P. Ry. Co. v. Seaborn, 168 Ala. 658, 53 So. 241. The purpose of such testimony should be made plain to the jury--if it be such as has only a limited application, or a double aspect, rendering it incompetent as independent and original evidence. It should be properly limited on its introduction in evidence.

In the record before us, the witness was cross-examined from transcribed notes by the official stenographer, purporting to be the detailed or private statement of the witness to state's counsel of the attendant circumstances and facts of the res gestae of the homicide. State's counsel said to the court, "We can show at all times contradictory statements" of a witness. There was no demand by the witness of the right of inspection, it was read to her and the writing was not introduced in evidence and given to the jury for consideration with the oral evidence. Defendant's counsel objected and then moved to exclude such questions and answers on the grounds that "the record does not show that she was informed that she did have to testify, or did not have to testify; it is not sworn to; and she was not under oath. And she had nobody there to protect her or take up for her; and it is incompetent, irrelevant, and immaterial what took place the day after that, without anybody to protect her, or anybody to talk to her or consult with her, and it would be at a time when she could not be at herself, without any assistance whatever"; and from adverse rulings by the court due exceptions were reserved. The purpose of the evidence was for contradiction or for impeachment, though the jury were not specifically instructed that such was the purpose and said statements should not be considered by the jury as independent and original evidence of the material facts embraced in said inquiries, if a part of the evidence was immaterial or irrelevant, the objections should have indicated to the court, separating the competent from the incompetent testimony. Lester v. Jacobs, 212 Ala. 614, 103 So. 682. If it was deemed necessary to refresh the recollection of the witness or to identify the document, time for inspection or examination of the same should have been asked and duly given by the court.

The bill of exceptions recites:

"This was all the evidence introduced in the case. The defendant here offered to introduce in evidence the transcript of the testimony of Mr. Manning, the defendant, which was read before the jury. The state objected to this, and the court sustained the objection, adding: 'That is no evidence, that which they claim was the statement that he made at first.' The defendant duly excepted to the ruling of the court."

The matter thus adverted to was theretofore set out in the bill of exceptions as follows:

"That is a true and correct transcript that you have there of what I took down over there, and it is in my own typewriting as compiled by me from my shorthand notes.

"The witness was then asked the following question: I will ask you if on that occasion this question was asked of Mr. Manning, and this

...