Mullins v. State

• Decision Date: 28 November 1944
• Docket Number: 4 Div. 858.
• Citation: 19 So.2d 845,31 Ala.App. 571
• Parties: MULLINS v. STATE.
• Court: Alabama Court of Appeals

19 So.2d 845

31 Ala.App. 571

MULLINS v. STATE.

4 Div. 858.

Alabama Court of Appeals

November 28, 1944

Appeal from Circuit Court, Dale County; J.S Williams, Judge.

The following charges were refused to defendant:

"6. Before the Jury can convict a defendant of the crime charged they must be satisfied from all the evidence, beyond reasonable doubt, not only that the Defendant is guilty of the crime that he is charged, but that he is mentally sane and if the Jury, after hearing all the evidence, have a reasonable doubt as to either of these propositions, they cannot convict the Defendant of the crime charged in the indictment."

"8. Before the Jury can render a verdict of guilty in this case they must be satisfied beyond a reasonable doubt that the defendant is guilty of the crime as charged, and that he was of sound mind at the time said crime was committed.

"9. If, from all the evidence the Jury has a reasonable doubt as to the mental soundness of the defendant, at the time of the commission of the alleged crime they cannot find him guilty.

"10. The Court charges the Jury, that if they believe from the preponderance of the evidence that the Defendant was insane, but that as a matter of fact, knew right from wrong as applied to the particular act in question, and that he did not know right from wrong as to the peculiar act in question, he is not legally responsible for his act, and should not be punished."

W.L. Lee and Alto V. Lee, III, both of Dothan, for appellant.

Wm. N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty. Gen., for the State.

CARR Judge.

Appellant was indicted for murder in the first degree. To the indictment he interposed pleas of not guilty and not guilty by reason of insanity. He was convicted of murder in the second degree.

The circumstances of the homicide are not in material conflict. Appellant disclaimed any knowledge or recollection whatsoever of the events relating to the occasion when undisputedly he shot the deceased with a pistol.

It will not add clarity or import to this opinion to analyze the testimony. Suffice it to say the State's evidence amply supported an unlawful homicide. Appellant introduced much evidence in aid of his special plea. The prime questions revolved around the inquiry of defendant's sanity vel non.

While qualifying the members of the venire anticipatory to selecting a jury to try the case, the court inquired of each juror if he had a reason to offer why he could not accord to the defendant and the State a fair trial should he be selected as one of the number to try the case. One of the group answered that he had a fixed opinion and he was "afraid he would follow this opinion irrespective of the evidence." The State challenged the juror for cause and, over the objection of appellant's counsel, the trial court did not permit the juror's name to be included on the striking list.

The law contemplates, and fair, untrammeled justice demands, that each case in the courts, where a jury is required, be tried by an impartial, unbiased jury. Our Legislature has provided safeguards. As applied to the instant consideration, we find: "It is a good ground for challenge by either party * * * that he has a fixed opinion as to the guilt or innocence of the defendant, which would bias his verdict." (Emphasis ours.) Code 1940, Title 30, § 55(7).

Our appellate courts also have always taken a firm position in recognizing and upholding this sacred constitutional security. Jackson v. State, 77 Ala. 18; Folkes v. State, 17 Ala.App. 119, 82 So. 567.

The primary court has the first and most important opportunity to protect and preserve this ancient guarantee. When it clearly appears that a prospective juror entertains a fixed opinion as to the guilt or innocence of the defendant and thus possesses a disqualification of such vital materiality, it is not only the right but the duty of the trial judge to promptly excuse him.

It appears from the record that the solicitor, or someone for him, had prepared a drawing or diagram of the locale of the alleged homicide. Appellant's counsel objected to reference being made to this outline when the solicitor was interrogating a witness and the later introduction of same in evidence. An occupant of the house where the deceased was killed, and one thoroughly familiar with the location, had testified that the drawing was accurate and a fair and correct representation of the premises it sought to describe. There is no merit in this claim. Burton v. State, 107 Ala. 108, 18 So. 284; Noel v. State, 161 Ala. 25, 49 So. 824.

It may be observed also that this ruling could not ultimately inure to the harm of appellant since there was no issue raised in the testimony relating to the description of the house in question.

As a witness for the State on direct examination, Mrs. Annie Defnall, wife of deceased, stated: "He was sitting pretty close to the door facing the corner and he pushed the door open and said, 'Oh, Mr. Mullins, what in the world is the matter!', and he turned around and shot him. * * * I saw him fall when I turned and left."

On cross examination of the same witness the record shows:

"Q. You testified before the grand jury?

A. Yes.

"Q. Well, didn't you testify that after your husband said, 'What in the world is the matter with Mr. Mullins', then he fired and then you ran?"

The trial court sustained the solicitor's objection to this question. In this ruling there was no error. It is clearly apparent that the latter statement, if made by witness when testifying before the grand jury, was not in contradiction to her narration of the events when testifying on the main trial, as indicated above.

While a witness may always be impeached by showing that he has made a contradictory statement as to material matters before the grand jury, the inquiry must be limited to contradictions and not corroborations. Riley v. State, 21 Ala.App. 655, 111 So. 649; Lester v. Jacobs, 212 Ala. 614, 103 So. 682.

A large number of witnesses were called and interrogated as to the good character of appellant. To be exact, there were thirty-six, according to our count. After they stated on direct examination that appellant's character was good, some of the witnesses answering also that it was good for peace and quiet, one of the prosecuting attorneys, without exception in the cross examination of any of the thirty-six witnesses, propounded, either verbatim or in substance, one or the other of the following questions:

"Assuming that this defendant had gone to the home of another man at night time and shot a pistol around in the room and a young lady ran out by him and he ran out after her and shot the pistol again and then he turned around when a man asked him what was the matter--he turned around and shot this man, would you say that he was a man of good character?"

"Assuming these facts to be true: that Mr. Mullins put a pistol in his pocket in the night time and went to the home of a citizen of Dale County and there went into the kitchen where the family were, one girl whose life he had threatened, and pulled out a pistol and fired twice in the kitchen and when that girl ran out the kitchen door he fired again in that direction and when the head of the house asked him, 'Mr. Mullins, what in the world is the matter?', he turns and shoots him and kills him, do you say that that man is a man of good character for peace and quietude?"

Over the objections of appellant's counsel, the witnesses were required to respond. The record discloses various forms of answers, some, "No", some, "Yes", some, "I don't know. Others made conditional and evasive replies. There are indications of much confusion and uncertainty on the part of many of the witnesses as to the meaning and import of the question.

It is a well recognized rule that character must be shown and established by evidence of general repute. This does not contemplate proof of specific conduct. Without question, a person's behavior becomes a basis upon which his associates, friends and neighbors must rely in appraising his character or reputation. The inquiry, however, should not be directed to some particular performance, but rather the resultant of the course of behavior as it impresses the community life of the person whose character is involved. This rule applies with equal force to both direct and cross examination of a character witness. The permission allowed to wide latitude in cross examination does not permit an infraction of the principle stated above. Moulton v. State, 88 Ala. 116, 6 So. 758, 6 L.R.A. 301.

Confusion sometimes arises in distinguishing between the right to cross examine a witness who testifies to good character to ascertain his estimate of character as affecting his credibility and the prohibition against inquiring as to specific conduct. In the former inquiry it is complying with the rule for the opposing counsel to ask the witness if he has not heard of certain misbehavior which would tend to mitigate against the character of the person whose good repute the witness is seeking to uphold. This is allowed for the reason that an adversary has the right to test the accuracy,...