Null v. State

• Decision Date: 11 June 1918
• Docket Number: 8 Div. 580
• Parties: NULL v. STATE.
• Court: Alabama Court of Appeals

79 So. 678

16 Ala.App. 542

NULL v. STATE.

8 Div. 580

Court of Appeals of Alabama

June 11, 1918

Appeal from Circuit Court, Lauderdale County; C.P. Almon, Judge.

John Null was convicted of murder in the second degree, and he appeals. Affirmed.

R.T. Simpson, of Florence, for appellant.

F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen for the State.

BRICKEN J.

The defendant was tried upon an indictment charging him with murder in the first degree, was convicted of murder in the second degree, and sentenced to 12 years' imprisonment in the penitentiary.

The deceased, Annie Butler, was a child 6 years of age, and was the stepdaughter of the defendant, he having married the child's mother some six months prior to the alleged commission of the offense. The child died on a Sunday night in April, 1917, and it is insisted by the state, the indictment so charging, that her death was caused by the defendant having beat her with a leather strap, or that her death was accelerated by this means, or that the immediate cause of her death was shock, the result of such beating by the defendant.

Errors are assigned by appellant's counsel; and, while this is not required in criminal cases, it is nevertheless permissible, and the writer has no hesitancy in stating that it is a good practice and a wise one, for by this means the errors complained of and insisted upon are brought specifically to the attention of this court, and the assignments of error need not, and do not, militate against a compliance by this court with the statute, which requires that the court must consider all questions apparent on the record or reserved by the bill of exceptions, and must render such judgment as the law demands, etc.

The errors complained of in the instant case relate to the rulings of the court on the admissibility of the testimony and to a portion of the oral charge of the court, and to the action of the court in refusing certain written charges requested by defendant.

The state offered as its first witness Dr. R.L. Penn, a practicing physician of many years' standing, and his evidence tended to show: That the body of the deceased had been exhumed, and that he held a post mortem examination of the remains before appreciable decomposition had set in. That there were bruises on the forehead, but there was no fracture of the bones, and that the skull was not fractured. That there were bruises on the body and the skin showed some superficial injuries. That upon opening the body he found that the kidney was stuck to the wall of the stomach, and the lining of the liver was inflamed, and that the gall bladder had been ruptured and the bile had run out into the intestines as a result of this rupture, and that the appearance of the intestines showed anaemia, which was indicated by the fat being pale instead of yellow. That the gall bladder is a reservoir for the bile below the liver, and is the secretory function of the liver; and, further, that if the gall bladder was bruised or ruptured, it would drain out the bile, and that would set up inflammation, which brings about peritonitis, which would cause death. That there were marks of violence on the child, as indicated by blue places marks, or stripes on the child's body and bruised places across its back, in the region of the costal cartilage behind which the gall bladder is located, and also on its forehead and on the lower bowels. The stripes were 4 or 5 inches long to 1 1/2 inches wide. That "the child died from shock and the anaemic condition, plus shock and fear of constraint." And over the objection of the defendant this witness testified that it was possible for the gall bladder to be burst by a stroke just over it, and that with the condition the deceased was in, the gall bladder being enlarged and the liver adhered, a lick struck over the gall bladder with an instrument or weapon of any kind, or with a heavy leather strap, it is possible that the gall bladder would burst, etc. On cross-examination he testified that it would take some time for death to occur when superinduced by a lick on the posterior portion of the body which burst the gall...