Palmore v. State

• Decision Date: 06 February 1969
• Docket Number: 4 Div. 293
• Parties: William PALMORE v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 830

218 So.2d 830

283 Ala. 501

William PALMORE v. STATE of Alabama.

4 Div. 293.

Supreme Court of Alabama.

Feb. 6, 1969.

E. H. Graves, Jr., Eufaula, for appellant.

MacDonald Gallion, Atty. Gen., and Lloyd G. Hart, Asst. Atty. Gen., for the State.

COLEMAN, Justice.

Defendant appeals from conviction for murder in the first degree with sentence of life imprisonment. The victim was his common-law wife.

The state's evidence is to effect that defendant became incensed against or angry with the wife on account of her relations with another man; that one evening about 10 o'clock, in their home, after defendant had been drinking wine and gin, he and the wife quarreled and fought; and that, in the course of the difficulty, defendant killed her by cutting her throat.

Defendant pleaded not guilty and not guilty by reason of insanity. Defendant testified that one of the children born to the woman while they were living together was not his child. He testified that deceased had told him she had been out with another man and that he became worried and sick, could not eat, and lost weight. He said that after the fight started he does not know what happened. Defendant said he and the woman were not legally married.

Counsel for defendant has set forth several points in his brief which, he argues, constitute reversible error. We discuss these points in the order in which they appear in brief.

Assignments 1 and 8.

Defendant says the court erred in overruling his objection to two questions propounded to witnesses by the state. One question was: 'Do you know the defendant in this case sitting right here?' Defendant says the question was improper because, for aught that appears, the witness could not have identified defendant in absence of aid from the district attorney. The witness answered in the affirmative; and, when next asked defendant's name the witness stated defendant's name. There was no error in overruling the objection. The second question was answered in a similar manner.

Assignments 2, 3, 4, and 12.

In these assignments, defendant asserts that the court erred in overruling objections to questions which assumed facts not in evidence and were leading in that the questions pointed out the answers desired. Whether allegedly leading questions will be permitted is largely within the trial court's sound discretion. Morris v. State, 268 Ala. 60, 66, 104 So.2d 810. We find no prejudicial error in the rulings here complained of.

Assignment 5.

Defendant says the court erred in failing to strike from the record, after sustaining defendant's objection, a question and answer which appear in the record as follows:

'Q Had you seen your mother and this man in any prior disagreement or argument or fight some days before?

'A Yes, sir.

'MR. GRAVES: Object on the grounds it is irrelevent Your Honor and move that it be stricken.

'COURT: Wait a minute.

'Q When was that, within the last 2 or 3 days?

'COURT: Prior difficulty.

'MR. REEVES: I am trying to show that there was a motive in the defendant's mind.

'COURT: Sustain right now.

'MR. GRAVES: Move that it be stricken and the jury be instructed to disregard it.

'COURT: I don't believe he answered it. If he did gentlemen disregard that last answer.'

Objection came after the question was answered, but, even so, the court instructed the jury to disregard 'that last answer' if the witness had answered. We are not advised of anything further that the court was required to do. The record had been made and we do not think the court had authority to strike out part of it. Assignments 6 and 7.

Defendant argues that the court erred in overruling his objection to a question asking a witness to describe the condition of the body of deceased, '. . . if you can.' The witness had testified that, after the fight, the witness had gone into the room and looked at the body. It was not error to allow him to testify as to what he knew and saw.

Defendant argues that the court erred in allowing the witness, a fifteen-year-old boy, to testify as follows:

'Q When he got you out of the bed you went into the living-room into the front room that is when you saw your mother?

'A No, I went in the kitchen that was where she was laying.

'Q Was she dead?

'A Yes, sir.

'MR. GRAVES: Object and move that that be excluded. It is calling for a conclusion of a medical fact. I don't think the boy is qualified to give that.

'COURT: Overrule.'

Defendant says the boy was not qualified to express a medical opinion that his mother was dead.

The objection came after the answer. We do not understand defendant to contend that the woman did not die as a result of having her throat cut. That is an undisputed fact in the case. This witness had already testified, without objection, as follows:

'Q You tell us then, in your own words, tell the jury what happened and what you saw?

'A He kept on fighting my mother and he had been drinking and she asked him was he drunk he said no and she went in the kitchen fixing to fry him an egg and he kept on in there fighting her. He asked her did Sam love her she said no and he said she was lying and he jumped up and knocked her back down in the chair and hold her head back and cut her throat right around here. After he had cut her he called me, Roy and my brother and he said he had killed our mother. We got up and looked at her and Roy Lee he started crying and he made Roy Lee stop crying and come get back in the bed. He told me to get up and cut the lights off after he had killed her he took his knife and washed it off in the wash pan sitting in the chair after he killed her he told me when day come to come tell my grandmother. He asked me what I was going to tell her I said they was fighting and he killed my mother. He left on out and I cut the lights off and closed the door.'

Whether the woman was already dead when the witness saw her body or whether she died some time later is of no significance. If it had been an issue whether she was dead when the witness saw her, or whether she died later, then there might be cause to argue that a lay witness ought not to be allowed to testify that she was dead, but that is not this case. If the ruling was error in any sense, it was without injury to defendant. Rule 45.

Assignments 9, 10, 11, 13, and 14.

Defendant assigns for error the court's overruling of defendant's objections to testimony of a police officer as to the body he found when he entered defendant's home on the morning following the woman's death. Defendant assigns as error also the overruling of his objection to the testimony of a state toxicologist as to what he found in a post mortem examination of the body.

Defendant's ground of objection is that the testimony is inadmissible because it was obtained as the result of an unreasonable search and seizure and that its admission violates the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

It is true that the deputy did not have a search warrant when he entered defendant's home. Defendant was not there and was arrested later at a different place.

The deputy testified that he received a phone call that morning about 5:45 and went to defendant's home; that he knocked on the door and was 'greeted by one of the daughters'; that the daughter told him the mother was in the kitchen dead and he immediately went to the kitchen where he saw the body on the floor and saw she was not breathing.

The daughter was later called as a witness by defendant and testified that she was thirteen years old. We do not find in her testimony any reference to the deputy's coming to the home of defendant or what occurred on the deputy's arrival.

We recognize the holding in Mapp that testimony unlawfully obtained is not admissible. We do not believe, however, that an officer is making an unreasonable or unlawful search when he enters a home to which he has gone in response to a phone call, and, on his arrival has been told by a child, apparently the oldest member of the family present, that her mother is in the kitchen dead. Under the circumstances of this case, we are of opinion that his going into the kitchen was reasonable and that it would be unreasonable to require the officer to go first to a magistrate and obtain a search warrant before entering the house. Being of opinion that the testimony of the officer and toxicologist, as to the condition of the body, was not the fruit of an unreasonable or unlawful search, we hold that it was not error to admit the testimony.

Assignment 15.

The state toxicologist was asked by the state:

'Q In your opinion what would you say was the cause of death . . ..?'

Defendant argues that his objection to the question ought to have been sustained because the witness had not first stated the data on which he bases his opinion. The record does not support defendant's contention. Before the question was asked, the witness had testified in detail as to what his autopsy had disclosed. In a preceding paragraph, we have dealt with defendant's argument that the testimony is the product of an unreasonable search.

Assignments 16 and 17.

Defendant assigns for error admission into evidence of certain photographs of the body of deceased over defendant's objection on the ground that 'the condition is such to inflame the minds of the jury.' The prosecuting attorney stated that the photographs were introduced 'to see the gravity of the offense and depth of the wound.'

The fact that a photograph is gruesome is no ground for excluding it from evidence. Beverly v. State, 281 Ala. 325, 330, 202 So.2d 534; Davis v. State, 257 Ala. 447, 450, 59 So.2d 592.

Photographs showing the wounds inflicted on the body of the deceased and the pocket knife used in inflicting them were held to have been admitted without error in Douglass v. State, 257 Ala. 269, 275, 58 So.2d 608.

Under the holdings of this court, the photographs were admitted without error. They show the wounds on the body and tend to corroborate the...