McDowell v. State, 6 Div. 375.

• Court: Supreme Court of Alabama
• Writing for the Court: ANDERSON, Chief Justice.
• Citation: 189 So. 183,238 Ala. 101
• Parties: MCDOWELL v. STATE.
• Decision Date: 11 May 1939
• Docket Number: 6 Div. 375.

189 So. 183

238 Ala. 101

MCDOWELL
v.
STATE.

6 Div. 375.

Supreme Court of Alabama

May 11, 1939

Rehearing Denied June 8, 1939.

Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler, Judge.

Eugene McDowell, Sr., was convicted of murder in the first degree and sentenced to life imprisonment, and he appeals.

Affirmed. [189 So. 184]

Albert Boutwell, M. B. Grace, and Robert Giles, all of Birmingham, for appellant.

Thos. S. Lawson, Atty. Gen., and Geo. Lewis Bailes, Sol., and Robt. G. Tate, Dep. Sol., both of Birmingham, for the State. [189 So. 185]

ANDERSON, Chief Justice.

The most seriously contested question upon this appeal relates to the establishment of the corpus delicti.

It is well settled in this jurisdiction that it is the province of the judge to determine whether there is testimony sufficient to make it appear prima facie that the offense has been committed. The evidence on which the judge acts may not necessarily establish the corpus delicti. It may be, and often is, conflicting and contradictory. In such case, the credibility of the witnesses and the sufficiency of the entire evidence are for the ultimate decision of the jury. Winslow v. State, 76 Ala. 42; Ryan v. State, 100 Ala. 94, 14 So. 868; Martin v. State, 125 Ala. 64, 28 So. 92.

The corpus delicti is a fact, proof of which may be made by circumstantial evidence. If there is a reasonable inference deducible from the evidence of its existence, the court must submit the question of the sufficiency and weight of the evidence tending to support that inference to the jury. Martin v. State, supra; Lewis v. State, 220 Ala. 461, 125 So. 802; Wilson v. State, 191 Ala. 7, 67 So. 1010; Newell v. State, 115 Ala. 54, 22 So. 572.

There was sufficient evidence to make out a reasonable inference that the party who was shot on the early morning in question was Walter Parker as named in the indictment and that death must have resulted from the shots fired into him as he has never since been seen or heard from and he was last seen in the presence of the defendant and his companions who picked him up and went off with him in the car and blood and brains were found on the ground where he was shot. This not only made out a prima facie case to be submitted to the jury but to authorize them to find beyond a reasonable doubt that the party shot and removed by the defendant and his companions was Walter Parker and that he was then dead or mortally wounded.

For a full and learned discussion of this question, see State v. Williams, 46 Or. 287, 80 P. 655, which cites and quotes from many reported cases and text books supporting our holding.

As there was proof sufficient to authorize the court to submit the question of the corpus delicti to the jury, there was no reversible error in overruling the objections of the defendant to the evidence based upon the failure to show the corpus delicti, whether they came before or after the same had been established. The trial judge may determine the order of the proof. Scott v. State, 141 Ala. 1, 37 So. 357; Parham v. State, 147 Ala. 57, 42 So. 1.

The trial court did not commit reversible error in excusing witness Jackson from the rule. "When witnesses are placed under the rule, it is discretionary with the presiding judge, to permit exceptions to its enforcement," Hall v. State, 137 Ala. 44, 34 So. 680; Riley v. State, 88 Ala. 193, 7 So. 149; Jarvis v. State, 138 Ala. 17, 34 So. 1025.

The trial court did not err in refusing to exclude the statement of Mark Smith that when...