May v. State
| Decision Date | 18 June 1963 |
| Docket Number | 8 Div. 848 |
| Citation | 42 Ala.App. 401,166 So.2d 860 |
| Court | Alabama Court of Appeals |
| Parties | Carver David MAY v. STATE. |
Jesse A. Keller, Florence, for appellant.
Richmond M. Flowers, Atty. Gen., and Ed Brogden, Sp. Asst. Atty. Gen., for the State.
On February 21, 1962, the appellant, Carver David May, was jointly indicted with Jerry Rogers, Zeke Morrison, and Larry Johnson for first degree murder and on February 27 was arraigned, at which time he plead not guilty. On March 29, 1962, Jerry Rogers was tried and convicted and sentenced to sixty years in the penitentiary. On April 11, 1962, the appellant was convicted of manslaughter in the first degree and sentenced to seven years in the penitentiary. The defendant filed a motion for a new trial and this motion was overruled and the defendant appealed his conviction to this court.
The tendency of the evidence is as follows: On the night of January 2, 1962, the appellant, accompanied by Jerry Rogers, Zeke Morrison and Larry Johnson, went to the Fountain Lanes Bowling Alley in Florence, Alabama. C. T. Richardson testified that while Rogers was in the restroom, the deceased, Travis Pounders, asked Richardson, 'What did I think about these young kids trying to dress like motorcycle policemen', having reference to a black leather jacket which Rogers was wearing. When Rogers came out, he commented to Larry Johnson that two men who were drinking in the restroom had treatened to whip him. the defendant, May, overheard this conversation. Richardson and the deceased had paper cups containing a beverage in their hands while they were in the restroom. They had been drinking prior to coming to the bowling alley. There is some dispute as to who left the bowling alley first but all parties left at approximately the same time. While they were in front of the bowling alley, Rogers confronted the deceased about the remark he had made about Rogers' apparel. This was followed by a fight between Rogers and the deceased and the deceased was knocked against the defendant, May, who then hit the deceased on the back of his head but the deceased did not indicate that he was aware that he had been struck by May, nor did it alter his attention toward Rogers. May contends that his striking the deceased was a reflex action. The deceased was between Rogers and the defendant, May, and this blow was apparently unseen by Rogers. According to the testimony of the defendant, the deceased then 'went back after' Rogers who then cut the deceased. Richardson had left the scene of the fighting and he was so far away from May that he did not see the fatal blow. The defendant, Rogers, Morrison, and Johnson fled.
On April 3, 1962, the defendant filed a motion for a continuance of his trial and assigned as grounds the allegedly adverse publicity by the newspaper and on television prior to May's trial and during the course of Rogers' trial. A hearing was held on this motion and testimony was submitted thereon by both the defendant and the State. The court overruled the motion for a continuance to which action of the court the appellant duly excepted.
The granting or refusal of the motion for a continuance was a matter lodged in the discretion of the trial court. In overruling the motion, the court did not abuse this discretion. Goldin v. State, 271 Ala. 678, 127 So.2d 375.
The case proceeded to trial on April 9, 1962. Over the objection of the defendant, the State introduced a photograph of the back of the deceased's head showing a bruise. The picture was introduced upon the examination of Dr. William T. McVay, Assistant State Toxicologist, who performed an autopsy on the embalmed body of the deceased the day after his death. McVay testified that in his professional opinion, death 'was a direct result of a cutting stab wound to the left chest area', that 'the instrument would have been a sharp penetrating instrument whose width would not be more than 5/8 of an inch wide', and that 'it would be consistent with having been inflicted by a knife'. Dr. Harry M. Simpson, Jr., a reputable practicing physician of Florence, Alabama, who examined the body of the deceased a few hours after his death, testified that, in his opinion, death was the result of a stab wound in the chest which caused shock and the loss of blood. Dr. McVay testified further that he discovered a traumatic injury, or abrasion, on the back of the deceased's head. On cross-examination, Dr. McVay testified that fall backward by the deceased from a standing position, hitting his head on the pavement, 'would be consistent with the abrasion'.
During the testimony of Dr. McVay, the State offered as 'Exhibit 1' a picture which the State contended illustrated the abrasion on the back of deceased's head that McVay testified about then. To the admissibility of this exhibit, the defense interposed objections that
The defendant assigned the further ground to the admissibility of the picture because 'the body had been tampered with and embalmed before the picture was made'.
The photograph tended to shed light on the testimony of McVay and illustrate the truth of it and was properly admitted into evidence. The rule now prevailing in Alabama is stated in McKee v. State, 253 Ala. 235, 44 So.2d 781:
'We think we are safe in stating as a general and well settled proposition of law that the courts in this country take judicial knowledge that the art of photography is generally relied on for depicting the resemblance of persons, objects, things and places and when verified by evidence, extrinsic of the photographs, going to show that they correctly depict the thing or object at the time they were taken, photographs are admissible in evidence in a criminal prosecution, if they tend to shed light on, strengthen or illustrate the truth of other testimony offered by the prosecution.
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'There was no error in admitting in evidence a photograph of the deceased, taken after the performance of an autopsy, even though the photograph showed marks of incisions made for the purposes of the autopsy, the autopsy surgeon pointing out to the jury the marks resulting from his examination.
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'The fact that the photographs were made after exhumation, eight days after death, goes to the weight of the evidence not to its admissibility.'
The contention of the defendant, that the injury was caused by deceased's falling and hitting his head, did not cause the photographs to become incompetent so as to be inadmissible.
Lambert v. State, 234 Ala. 155, 174 So. 298.
Evidence was before the jury that at the time the photograph was taken the deceased had been embalmed and that the embalming fluid would cause the body to swell. Therefore, the photograph was not rendered inadmissible because the body had been embalmed. McKee v. State, supra.
Harris v. Snider, 223 Ala. 94, 134 So. 807.
Even though the photograph may have inflamed the mind of the jury and was cumulative evidence, it was admissible.
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