McClendon v. State

• Decision Date: 18 June 1942
• Docket Number: 6 Div. 874.
• Parties: McCLENDON v. STATE.
• Court: Alabama Supreme Court

8 So.2d 883

243 Ala. 218

McCLENDON v. STATE.

6 Div. 874.

Supreme Court of Alabama

June 18, 1942

Rehearing Denied June 30, 1942.

Appeal from Circuit Court, Cullman County; A. A. Griffith Judge.

The following charge was refused to defendant: "The court charges the jury that there is a presumption that the defendant did not intend to take his own life, and if you find from the evidence that the defendant ate food which contained poison in sufficient quantities as to endanger his own life, there is a presumption that he did not know such poison was in such food at such time. If the jury further finds from the evidence that the deceased ate a portion of the same batch of food, so eaten by the defendant, if it be found that a portion thereof was eaten by the defendant which was made up from the same substance at the same time and if it be further found by the jury that the defendant and deceased ate the food made of the same substance, together, and at the same time, there is a presumption that the defendant did not know that poison was in the food eaten by the deceased in sufficient quantities as to produce death."

John Chapman, of Cullman, and Beddow, Ray & Jones, of Birmingham, for appellant.

Thos. S. Lawson, Atty. Gen., and Walter W. Flowers, Asst. Atty. Gen., for the State.

GARDNER Chief Justice.

The appeal is from a conviction for murder in the first degree with punishment fixed at imprisonment for life. Defendant's wife died of arsenic poison from eating "pancakes" cooked by defendant and given to her about 11:30 o'clock in the morning of February 17, 1941. Defendant testifies he ate two of the cakes himself and his wife three; that he knew nothing of any arsenic being in the flour and was himself made very sick. An examination of his urine following his arrest and some twelve or thirteen days after the cakes were eaten disclosed a trace of arsenic. The flour had been purchased at Cullman by another for defendant and delivered at his home at night.

In May of 1940 the proof tends to show defendant had some arsenic in his possession for poisoning potatoes, so he states, though evidence for the State tends to show he said there was none at his home at this time. We omit details of proof as unnecessary here to relate.

Defendant's wife had been in ill health a number of years and confined to her bed for several months. The State offered proof tending to show association with a widow, Della Oden, though of more or less disconnected times and places. But there was some proof, if believed by the jury, tending to show an illicit relation. All of this proof was for the purpose of establishing a motive for the crime, to rid himself of his invalid wife.

Defendant's criticism of this proof goes to its weight and credibility rather than to its admissibility. The question is fully discussed in Spicer v. State, 188 Ala. 9, 65 So. 972, 977, quoting Baalam's case, Baalam v. State, 17 Ala. 451, to the effect that: "When it is shown that a crime has been committed and the circumstances point to the accused as the guilty agent, then proof of a motive to commit the offense, though weak and inconclusive evidence, is nevertheless admissible."

We think it clear enough the evidence was sufficient for the jury's consideration both as to the commission of the crime and defendant's guilt in connection therewith. We, therefore, conclude the affirmative charge requested by defendant was properly refused and that the evidence above referred to was properly admitted.

Defendant had known Della Oden a number of years but insisted that any meeting was merely casual in character and nothing improper ever passed between them. The Court, over defendant's repeated objections, permitted witnesses to testify as to the alleged contents of a letter witness Wharton claimed to have received through the U. S. mails addressed to him and with the name of defendant signed thereto. Wharton did not have the letter, "it got misplaced some way", he says. When asked if he received a letter from defendant: "I got a letter, I can't say it was from McClendon. * * * I received a letter with his name to it. I don't know who wrote it. I don't known whose handwriting it was. * * * I can't say whether or not this man wrote me the letter. * * * I said that somebody could have written me that letter in order to make me mad with McClendon".

Witness Wharton was permitted to testify to the contents of this letter; it stated: "I have decided to take care of Della as long as I live. * * * I have decided to kill you if I ever meet you at her house or elsewhere". There is nothing here to take this matter from without the generally accepted rule that "when a letter is offered as evidence it should be accompanied by competent proof showing its authenticity or genuineness". 20 Amer.Jur. 804; 16 C.J. 742; 23 C.J.S., Criminal...