McKee v. State

• Decision Date: 20 May 1947
• Docket Number: 5 Div. 237.
• Citation: 33 Ala.App. 171,31 So.2d 656
• Parties: McKEE v. STATE.
• Court: Alabama Court of Appeals

31 So.2d 656

33 Ala.App. 171

McKEE v. STATE.

5 Div. 237.

Alabama Court of Appeals

May 20, 1947

Rehearing Denied June 24, 1947.

Omar L. Reynolds and Reynolds & Reynolds all of Clanton, for appellant.

A. A. Carmichael, Atty. Gen., and John O Harris, Asst. Atty. Gen., for the State.

HARWOOD Judge.

This appellant was indicted for murder in the first degree of his wife Irene. He was by a jury found guilty of murder in the second degree, and his punishment fixed at imprisonment in the state penitentiary for a term of twenty years. His motion for a new trial being overruled appeal was duly perfected to this court.

The appellant, his wife, and five children lived in a small house near Jemison in Chilton County. The children were all boys aged 10, 8, 6, 4, and 2 years, respectively. Mrs. McKee, the deceased, was fourteen weeks pregnant at the time of her death.

The alleged homicide occurred on the night of 19 June 1946, somewhere between 7:30 and 9 p. m. The evidence presented bt the state was entirely circumstantial, and its tendency was as follows:

Several neighbors living within a quarter to a half mile of the McKee home testified that on the night in question and within the time period above mentioned they heard a woman scream from one to three times, the scream or screams coming from the direction of the McKee home. Very shortly after hearing these screams they heard appellant yelling to his neighbors, some saying they heard him call 'Mr. Gore, go get a doctor, my wife is real bad off,' and some heard him say 'Lord have mercy she is done dead, come here quick.'

Neighbors arrived at the McKee home in from fifteen to twenty minutes after hearing the screams and calls.

They found Mrs. McKee lying on a bed in the east front room apparently dead. She was clothed in a slip from her waist down, and a blanket had been placed over her. Her head and a pillow underneath were wet. The room adjoining on the west the room in which Mrs. McKee was lying was bare of all furnishings, this west room having been recently painted. Some one had, however, vomited just inside the door of this west room.

Some of the neighbors went over the McKee home. Their testimony is before us. No furnishings were anywhere disturbed, and no disorder of any sort was observed.

The appellant was present, dressed in work clothes, and all witnesses testified he appeared sober. To some witnesses he seemed nervous, to others no more nervous than one would ordinarily be under such circumstances.

Several of these witnesses testified that the appellant told them that after he returned from work he was on the back porch washing his feet and that his wife was in the room bare of furniture bathing from the waist up out of a boiler. She called to him to bring her a wet cloth as she was feeling ill. When he went to her he found she had fallen on the floor. He placed her on a bed, wet her face, and then sought aid.

The state stresses the point that there is a variance in the accounts given by appellant, in that he told one witness that his wife was dead when he found her, while he stated to another witness that his wife was not dead when he found her, and that after he had placed her on the bed she smiled at him and said 'Honey, I am leaving you,' while in a still different version one witness stated appellant had said he was on the back porch playing with a dog when his wife called to him.

The eldest son of the appellant, aged 10 years, testified for the state. His testimony was to the effect that on the day his mother died she had done the family washing, carrying tubs partially filled with water from the well to the place she did the washing. With the aid of this boy she had also sawed some wood that day, and late in the evening had picked blackberries with which she made a pie for supper. Several times during the day this witness observed Mrs. McKee catch her side and say it was killing her. This witness knew nothing as to the occurrences that may have happened just preceding his mother's death as he and all the other children were asleep.

He also testified that on the Monday morning before his mother died on Wednesday he observed his father and mother quarrelling because his father (appellant) had been away from home the night before, and during this quarrel appellant threw a plate of grits at the deceased, but it missed hitting her. Being recalled by the defense this witness recanted this portion of his testimony. The weight of his entire testimony, including the recantation, was for the jury.

As to marks, bruises, etc., on the deceased when observed after her death on the night in question Mrs. Alice Gore testified she saw a scratch on the lip of the deceased, and two small bruises on her arm.

Mrs. Davenport watched the other ladies dress the body of deceased before it was taken away by the undertaker. She observed no marks on the body whatsoever.

Mrs. Alex Bolton assisted in dressing the body, and also arranged the deceased's hair. She saw no bruises on the body except the scratch on the lip. After the body was returned from the undertaker she saw a 'place' on the right temple that was already scabbed over.

Mrs. Ruby Maynard who also assisted in dressing the body noticed only a scratch on deceased's lip, which she had seen on deceased while she was alive.

Bob White, the undertaker, who embalmed the deceased observed the bruises on the arm, the scratch on the lip, and a small place on the temple about one half the size of his little finger nail, which place on the temple had already scabbed over.

The testimony of Dr. Rehling, State Toxicologist, was the most significant presented by the state. Dr. Rehling testified that on 27 June 1946, some eight days after her death, he disinterred Mrs. McKee's body and performed an autopsy thereon. His dissection was confined to the chest and abdominal cavities. Prior to dissection the the body bore a number of bruises and abrasions, one being the left center of the forehead at the hair line, dark in color and about one and one half inches in diameter; there was a skin abrasion about one inch long and a quarter of an inch wide just forward of the right ear; there were a number of spot bruises on the outer aspect of the upper right arm; a group of three skin abrasions on the upper left shoulder blade area, about one eighth to three eighths of an inch wide and a quarter of an inch in length; brush marks or scratches on the right leg just below the knee; at the base of the shin was a bruise; at the base of the left hip was a bruise about two or three inches in length. Under the area of this last bruise was located the spleen.

Upon opening the abdominal cavity Dr. Rehling found that Mra. McKee's spleen was enlarged about three times its normal size. Dr. Rehling stated that the spleen is a spongy substance, and a very tender organ in normal state. When enlarged from disease it is still more friable. He found that the spleen had been ruptured, there being a tear in it about one and one half inches long. This rupture would cause excruciating pain, vomiting, and an internal hemorrhage which would result in death within thirty minutes.

Dr. Rehling gave as his opinion that Mrs. McKee had died as a result of this ruptured spleen, and that said rupture had resulted from an external blow.

During Dr. Rehling's testimony, and after he had testified in detail as to the physical condition of Mrs. McKee's body at the time of his autopsy thereon, particularly as to the spleen and its condition, the state, over the strenuous objections of the defense, introduced several photographs of the body taken by Dr. Rehling and developed under his direction. We will refer later to this phase of the evidence.

Testifying in his own behalf in the trial below the appellant stated that on returning to his home late on the afternoon of the day on which his wife died he found that his family had already eaten supper. He told his wife he was going to kill a small dog belonging to his children as the dog had been ill tempered since having its leg broken sometime before and had bitten several of the children. His wife protested, and as he did not desist she yelled several times. Seeing his wife was so upset he did abandon his plan to kill the dog. As they were walking back into the house his wife stumbled and fell as she was picking up some wood. She got up and they went from the back yard to the house. His wife went into the house to take a bath and he remained on the back porch to wash his feet. While so engaged his wife called to him to bring her a wet cloth as she was ill. He found a cloth and ran to his wife, finding her lying on the floor. He placed her on a bed, got a pail of water and poured it on her head in an attempt to revive her. He then ran to where his children were sleeping, waked the two eldest and sent them to tell a neighbor to summon a doctor. He then ran out of the house and called to his neighbors for help. In some ten or fifteen minutes his neighbors began arriving, and eventually a doctor. The doctor pronounced Mrs. McKee dead, either from heart trouble or indigestion.

The appellant denied he had struck his wife in any manner, and asserted that they had gotten along as well as the average couple, particularly for the past several years. He admitted that he and his wife had had a quarrel on the Monday morning before her death, saying he had driven his employer to Birmingham on Sunday and had been detained, not returning home until the next morning. His wife was quarrelling because of this overnight absence, and during the quarrel he threw a plate of grits at her, which missed hitting her.

We have set out the above facts probably to a tedious length as the appellant's counsel argues strenuously that ...