Morris v. State, 6 Div. 994
| Decision Date | 20 May 1937 |
| Docket Number | 6 Div. 994 |
| Citation | 234 Ala. 520,175 So. 283 |
| Parties | MORRIS v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied June 29, 1937
Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.
Sam J Morris was convicted of first degree murder, and he appeals.
Affirmed.
Albert Boutwell, Sam C. Pointer, Robert Giles, S.L. Irwin, and John P. McCoy, all of Birmingham, for appellant.
A.A Carmichael, Atty. Gen., Silas C. Garrett, III, Asst. Atty Gen., and Roderick Beddow, of Birmingham, for the State.
The appellant was indicted and convicted of murder in the first degree and given the death penalty. The defense was "not guilty and not guilty by reason of insanity." There was little, if any, conflict in the evidence as to the defendant's guilt of murder in the first degree, no self-defense, but lying in wait when firing the fatal shot or shots. There was an effort, however, to establish the mental incapacity of the defendant at the time of the homicide and it was this defense chiefly, if not entirely, as to which the rulings of the trial court are challenged.
It is true that section 9509 of the Code of 1923, among other things, provides: "Charges which are marked 'given' by the trial judge, must be taken by the jury with them on retirement, and those refused must be retained by the clerk." It appears that the defendant's requested charge 12 was marked given and read to the jury, and, conceding that through oversight it was not taken out by the jury, this would, of course, be error. But, from aught appearing, the other charges given for the defendant were delivered to the jury and taken out and considered and we can safely hold that the failure to take out with them charge 12 was error without injury as said charge was fully covered by those that were taken out and considered by the jury.
The State had the right, upon cross-examination of the defendant's character witnesses, to shed light upon the weight and credibility of their testimony. Pierce v. State, 228 Ala. 545, 154 So. 526, and many cases there cited. Moreover, the said witnesses gave a negative answer to each question which the trial court permitted the State's counsel to ask testing the weight and credibility of these character witnesses.
The defendant offered evidence to establish the infidelity of his deceased wife not only by rumor but by specific acts or circumstances as bearing upon his mind, and, this issue having been injected in the case, the State had the right to refute and rebut such evidence by not only showing no such rumors as well as no grounds for same.
It is urged that the case should be reversed because counsel for the state referred to one of the...
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...of the first contention he relies upon statements made by this court in Naugher v. State, 241 Ala. 91, 1 So.2d 294, and Morris v. State, 234 Ala. 520, 175 So. 283. They are as 'In a homicide case under a plea of insanity, the recent illicit relations between the defendant's wife and the dec......
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