Morse v. State, 6 Div. 35
| Decision Date | 13 April 1937 |
| Docket Number | 6 Div. 35 |
| Citation | 173 So. 875,27 Ala.App. 447 |
| Parties | MORSE v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler Judge.
Tom Morse was convicted of second-degree manslaughter, and he appeals.
Reversed and remanded.
Jim Gibson, of Birmingham, for appellant.
A.A. Carmichael, Atty. Gen., for the State.
This appellant was charged, by indictment, in the lower court with the offense of murder in the first degree in that "he unlawfully and with malice aforethought, killed Emma Watts by stabbing her with a knife," etc. In answer to the indictment he interposed his plea of "not guilty."
The trial resulted in the conviction of the defendant for the offense of manslaughter in the second degree, and the jury returned the following verdict: "We the jury find the defendant guilty of manslaughter in the second degree as charged in the indictment, and fix his punishment at one year hard labor for the county, and assess a fine of $250.00 dollars."
Under the law a defendant may be convicted for the offense of manslaughter in the second degree, if the evidence warrants it, under an indictment charging him with murder in the first degree. The statute provides, when the indictment charges an offense of which there are different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto, or of an attempt to commit the offense charged; and the defendant may be found guilty of any offense which is necessarily included in that with which he is charged, whether it be a felony or a misdemeanor. Code 1923, § 8697.
Here as stated, the defendant, under an indictment charging him with murder in the first degree was convicted of manslaughter in the second degree. The verdict of the jury operated as an acquittal of the defendant of the higher degrees of homicide charged in the indictment, which had been submitted to the jury for its consideration. The question as to whether or not there was any evidence in this case tending to constitute the offense of manslaughter in the second degree, and whether the verdict rendered was an intelligent one under the evidence, or that it was not responsive to any evidence in the case, is not presented for our consideration, as such question was not raised upon the trial and no ruling of the court was invoked in this connection. No special charge was requested as to manslaughter in the second degree, nor was there a motion for a new trial. The jurisdiction of this court in cases of this character is appellate only, and review here is limited to those matters upon which action or ruling at nisi prius was invoked or had. Woodson v. State, 170 Ala. 87, 54 So. 191. Whatever merit there may be in this question cannot, for the reasons stated, avail this appellant.
The evidence in the case disclosed, without dispute, that Emma Watts, the deceased named in the indictment, came to her death as a result of an incised wound in her breast. There appears to have been no eyewitness as to how the death wound was inflicted or by whom, except the defendant, who strenuously denied that he did it. His testimony as to this tended to show that deceased was under the influence of intoxicating liquor at the time and at their home, with no one present, she made a lunge at him with a knife and he jumped out of the way when she fell to the floor and on the knife which stuck in her bosom. That he immediately took her in his arms and hurried down the street to get an automobile with which to take her to the hospital, and that a son of the deceased, Ed Watts, accompanied him to the hospital, where she died a short time thereafter. The deceased and the defendant were at the time, and had been for three years, living together, and so far as the evidence discloses were on the best of terms with each other.
The first exception noted relates to the ruling of the court wherein State witness, Ed Watts, 21 year old son of deceased was permitted (over objection and exception) to testify that he heard his mother make the statement a few minutes before she died that Tom (defendant) stabbed her with a switch blade knife. It appears that said statement was not offered as a dying declaration, there having been no effort or attempt made to lay a predicate for the admission of dying declarations. It was offered under the rule applicable to inculpatory statements made in the presence of an accused and to which he makes no reply. The well-settled rule in relation to evidence of this character is that the statement must be such which naturally calls for a reply, and the party to be affected by it must be in a situation in which he would probably respond. Stated otherwise, silence in the face of pertinent accusation of crime by the party accused, partakes of the nature of a confession, and is admissible as a...
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Page v. State
...it was his duty to state the whole truth, he omitted in his statement facts to which he testifies on the trial.' In Morse v. State, 27 Ala.App. 447, 173 So. 875, 877, the following 'Defendant's counsel, on cross-examination, has a legal right to cross-examine a state's witness as to whether......
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McCart v. State
...Such a conviction amounts to an acquittal of such greater offense. Davis v. State, 31 Ala.App. 508, 19 So.2d 356; Morse v. State, 27 Ala.App. 447, 173 So. 875. We now come to a consideration of the question of whether the disqualification of the juror on the first trial of the appellant ren......
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Hammons v. State
...he decided to wait for one to be appointed. Questions concerning the admissibility of evidence are for the court. Morse v. State, 27 Ala.App. 447, 449, 173 So. 875 (1937). In the light of such conflicting evidence the judgment of the trial court admitting evidence of the lineup identificati......
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Southerland v. State, 8 Div. 128
...of the jury finding the appellants guilty of attempt acquits them of the higher offenses charged in the indictments. Morse v. State, 27 Ala.App. 447, 173 So. 875 (1937). In that case, a defendant indicted for murder was convicted of manslaughter. The court stated that "[t]he verdict of the ......