McMurtrey v. State

• Decision Date: 29 October 1957
• Docket Number: 3 Div. 3
• Citation: 101 So.2d 88,39 Ala.App. 319
• Parties: Anderson Woodrow McMURTREY v. STATE.
• Court: Alabama Court of Appeals

Page 88

101 So.2d 88

39 Ala.App. 319

Anderson Woodrow McMURTREY v. STATE.

3 Div. 3.

Court of Appeals of Alabama.

Oct. 29, 1957.

Rehearing Denied Nov. 26, 1957.

Wm. J. Fuller, Jr., Montgomery, and Ben H. Lightfoot, Luverne, for appellant.

John Patterson, Atty. Gen., and Edmon L. Rinehart, Asst. Atty. Gen., for the State.

HARWOOD, Presiding Judge.

This appellant in his original trial was convicted of manslaughter in the first degree under an indictment charging murder in the second degree. On appeal the judgment entered in the original trial was reversed because of certain rulings on the admission of evidence. See McMurtrey v. State, 37 Ala.App. 656, 74 So.2d 528.

In this second trial, by proper instructions of the court, the issue was submitted to the jury on the charge of manslaughter in the first degree. The jury found the defendant guilty of this charge, and this appeal is from the judgment entered pursuant to the verdict.

The evidence submitted in the second trial does not differ too materially from the evidence submitted in the prior trial, except that the appellant did not testify in the second trial, and of course the evidence we held erroneous in the first appeal was not offered.

The evidence presented by the State tends to show that on 19 September 1953, at about 9:00 A. M. the appellant and the deceased, Harvey Ray Kennedy, a man about 65 years of age, drove in appellant's pick-up truck from Montgomery to the home of a colored woman, Tennessee Owens, in Lowndes County. At Tennessee's home they got out of the truck and sat on the porch for a few minutes, talking generally. The deceased from time to time dropped his head, and was drooling on his shirt front. From the evidence he was undoubtedly drunk, and in fact the evidence shows that both men had been drinking heavily the night before they left Montgomery, and continued drinking on the trip to Lowndes County.

After a short while the appellant and deceased got into the truck and drove about a quarter of a mile away and parked near a fish pond.

The truck was observed there twice by Tennessee during the day, and she saw no one approach it.

About the middle of the afternoon Mose Hunter, a colored man, was approaching Tennessee's house on horseback. He saw the truck and the two men 'leant' on the seat as though asleep. Mose rode on to Tennessee's house.

In a few minutes the appellant again arrived at the house in his truck. He still appeared to have been drinking. He requested Tennessee to fix him something to eat. At first she refused, then agreed to cook something provided the appellant would obtain something to cook.

The appellant gave Mose a ten dollar bill and they got into the truck to ride in search of groceries.

As they arrived at the place where the truck had been parked the appellant told Mose 'That old man may be dead.' Appellant stopped the truck and told Mose to look at the deceased. Mose did so, and told appellant that the deceased appeared to be dead.

There were 'drag' marks from the place where the truck had been parked to the body.

Mose returned the ten dollar bill to appellant and returned on foot to Tennessee's house.

The appellant arrived about the same time. He told Mose and Tennessee that he hadn't done a thing to that 'old son of a bitch, he just passed away.' They then asked appellant if he was going to call 'the law.' The appellant stated he wasn't in condition to see 'the law,' and got in his truck and left.

Mose then contacted Mr. Ed Mealing, who called the Sheriff of Lowndes County.

The body of deceased was removed to an undertaking establishment in Montgomery, where an autopsy was performed on it that night.

The autopsy was performed by Mr. W. L. Sowell, a staff member of the State Department of Toxicology and Criminal Investigation. Mr. Sowell testified that he held a B. S. degree in Chemistry from the Alabama Polytechnic Institute, and has studied in addition bacteriology and human anatomy; he had taken two courses in zoology, one course in comparative anatomy, one course in genetics, one course in pathology, two courses in physiology, and two courses in toxicology.

He has been a member of the Department of Toxicology and Criminal Investigation since 1945, and during that time he has performed autopsies on around 500 bodies, and during his service he has studied wounds, the nature of wounds and their consequences on the human body.

Mr. Sowell testified that in the autopsy on the deceased he found a bruise on the right side of the face, swollen and hard, approximately two inches long and a half inch wide; on the back of the neck was another bruise of the same size; below the left ear was a tear. On the underside of the scalp he found hemorrhagic areas under the bruises. Opening the skull he found the brain generally congested with blood.

None of these wounds, nor conditions were sufficient to cause death in themselves.

Over appellant's objection however, and by a series of questions eliciting such testimony, Mr. Sowell testified that in his opinion the bruises on the deceased's head were caused by a blunt instrument, or a fist; that these blows produced the brain congestion, which in turn stimulated the vagus nerve which runs from the brain to the heart, which in turn caused a constriction of the coronary artery and deceased's death from coronary occlusion.

One of the points argued in brief for appellant is that the court erred in permitting Mr. Sowell to give his opinion testimony as to the cause of deceased's death, on the ground that Mr. Sowell was not properly qualified as an expert to express such opinion.

In view of Mr. Sowell's studies, and his experience of some thirteen years as a State Toxicologist we think he was shown to be amply qualified to testify as an expert in this field. Payne v. State, 261 Ala. 397, 74 So.2d 630; Phillips v. State, 248 Ala. 510, 28 So.2d 542. It might be observed that both of the above cases held that an assistant State toxicologist whose study and experience was substantially no greater than that of Mr. Sowell was qualified to give expert testimony as to cause of death.

The State introduced as a witness Mr. W. B. Painter, a State investigator. Mr. Painter accompanied other officers to the home of appellant in Montgomery on the night of the day in question, and appellant was placed under arrest.

Statements made by the appellant that night, and the next day at police headquarters were, after proper predicate, received in evidence.

The statements are recountals of appellant's meeting with deceased, their drinking, their trip to Lowndes County, and the occurrences there. We do not see that they materially alter the evidence already introduced, except that the appellant asserted that while the truck was parked near the pond the deceased engaged in an act of homosexuality with him. In view of appellant's assertions in the statement that while he was drunk, he was not so drunk he did not know what was going on, and that there was never any argument of any sort between him and deceased, it must be deemed that if the appellant did not consent to this abnormal act, he at least acquiesced in it.

Counsel for appellant objected to that portion of the statement relative to the abnormal sex act, and also moved for a mistrial because of its admission. The court ruled adversely to the appellant in these instances.

Later the court made this statement:

'The Court: Gentlemen, after further consideration I think the statement is not admissible except that the defendant admitted that he was with Harvey Ray Kennedy the entire time and I think that that part of the statement is certainly relevant and I'm going to instruct the jury as to the rest of the statement and the jury is not to consider it.'

We do not find in the record that any instructions were later given the jury in this connection.

This aside, we think the evidence objected to...