Moss v. State
| Decision Date | 02 July 1907 |
| Citation | 44 So. 598,152 Ala. 30 |
| Parties | MOSS v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Macon County; S. L. Brewer, Judge.
Jim Moss was convicted of a homicide, and he appeals. Affirmed.
O. S Lewis, for appellant.
Alexander M. Garber, Atty. Gen., for the State.
Before the trial, the defendant moved the court for an order requiring the sheriff to have and produce at the trial, the skull of the deceased, to be used as evidence, there being a dispute in the case as to whether or not the deceased was killed by a shot fired from a 44-caliber pistol belonging to defendant, which the evidence tended to show. It was shown that the body of deceased had been buried in a public graveyard at Antioch Church, near Notasulga, in Macon county. It was further shown that before the burial, two reputable physicians, Dr. J. C. Baldwin and Dr. W. S. Ward, carefully examined the skull of deceased, who dissected the same, and already knew as much of its condition as could be learned by exhumation and further examination, and that these physicians were accessible at the time of the trial. Both these physicians were present at the trial, and testified as to the condition of the skull and the bullet holes in the same. It was further objected by the state, that the court was without authority to direct the disinterment of the body of deceased for the purposes specified, and that the sheriff had no right or authority to do so.
In Bessemer Land & Improvement Co. v. Jenkins, 111 Ala 135, 148, 18 So. 565, 568, 56 Am. St. Rep. 26, it was said: The consent of the next of kin was not shown. But, there was no necessity to produce the skull, since it had already been subjected to the examination of the two physicians, who could tell as much about the matter, as if the skull were produced. Furthermore, the court had the right, even if it had the power to cause the body to be exhumed, to exercise its discretion not to allow the motion.
There is no merit in the contention, that, on account of the absence of the skull, the court should have continued the cause. This was in the discretion of the court, it not appearing that there was any abuse of its discretion, and we will not review its ruling in that regard.
It was admitted, that the evidence of the witnesses on the preliminary trial was taken down in writing by a stenographer and that it was correct. The defendant sought, in the instance of Will Simpson, to prove by him what he swore to, on the preliminary hearing. This evidence was in court, in the possession of defendant's counsel. The state objected on these grounds, and that the witness was entitled to see the evidence or have it read to him. The court so ruled, and in this there was no error. Kennedy v. State, 85 Ala. 326, 330, 15 So. 300; Carden v. State, 84 Ala. 417, 4 So. 823. The defendant's counsel then read the evidence to the witness, and he stated he swore to that.
The witness Frances Simpson testified that on her way home from the depot at Chehaw, accompanied by her husband, he and she were walking "peart." Defendant asked, "If your husband testified that you were walking slow, he was mistaken?" The court properly sustained an objection to the question. Whether the husband of the witness was mistaken or not, was for the jury to determine under the evidence.
The witness Cogburn testified that there were tracks along a certain road from the point where the body of deceased was found. On the cross, defendant's counsel further questioned the witness with reference to these tracks, and then moved the court to exclude such testimony. The objection came too late. The defendant should have objected when the questions were asked. Coppin v. State, 123 Ala. 58, 26 So. 333. Besides, the testimony was admissible. The theory of the state was, that defendant committed the crime, and took the road on which the tracks were found, on his way home. If that was true, the tracks were connected with defendant, and the weight to be given the testimony was solely for the determination of the jury. Livingston v. State, 105 Ala. 127, 16 So. 801; Young v. State, 68 Ala. 569.
J. J Yarbrough testified to a pistol shown him as being defendant's, found at or near the house of defendant's father, which had been hidden in...
To continue reading
Request your trial
-
Keeton v. State
...167 P. 426; People v. Way, 104 N.Y.S. 277; State v. Mariano, 91 A. 21; State v. Moxley, 14 S.W. 969; State v. Lewis, 116 N.W. 606; Moss v. State, 44 So. 598. corpus delicti of the crime of murder is composed of two essential elements; first, the fact of death itself; and, second, that the d......
-
Davis v. State
... ... witnesses, and which confine the jury to the necessity of ... looking alone to the evidence introduced by the state as a ... foundation for a verdict of guilty. Rigsby v. State, ... 152 Ala. 9, 44 So. 608; Welch v. State, 156 Ala ... 112, 46 So. 856; Moss v. State, 152 Ala. 30, 44 So ... 598. It likewise appears that the charge is also covered by ... some of the given charges ... Refused ... charge 19 was approved in Crane v. State, 111 Ala ... 46, 20 So. 590, but must fall for reasons pointed out in ... later decisions of our ... ...
-
Washington v. State
...State, 261 Ala. 397, 74 So.2d 630; Grissett v. State, 241 Ala. 343, 2 So.2d 399; Vernon v. State, 239 Ala. 593, 196 So. 96; Moss v. State, 152 Ala. 30, 44 So. 598; Crawford v. State, 112 Ala. 1, 21 So. 214. The admission of the bullet, when considered with the evidence of Dr. C. J. Rehling,......
-
State v. Atwood
...The power to grant the exhumation of human remains lies within the sound discretion of the trial court, see, e.g., Moss v. State, 152 Ala. 30, 34, 44 So. 598, 599 (1907), and we will not overturn the court's decision on this matter absent an abuse of that discretion. We find no abuse in thi......