Perry v. State

• Decision Date: 26 June 1889
• Citation: 87 Ala. 30,6 So. 425
• Parties: PERRY v. STATE.
• Court: Alabama Supreme Court

6 So. 425

87 Ala. 30

PERRY v. STATE.

Supreme Court of Alabama

June 26, 1889

Appeal from city court of Mobile; O. J. SEMMES, Judge.

Indictment for murder. Caroline Perry, a negro woman, was indicted for the murder of her daughter Mary, a child 10 or 12 years old. The child was killed one morning in June, 1888. An examination before the coroner's jury showed that its neck was broken, and that it was badly bruised and beaten. Defendant, testifying as a witness in her own behalf, denied that she killed the child, or that she bruised or injured it in any way, and the evidence against her was purely circumstantial. She stated that while she was sitting in the door, and talking to the child "she heard it hiccough and fall to the floor. Called it, but it did not answer. Got up and felt around, and found the child lying on the floor. Picked it up, and found it cold, but its heart was still beating. Called Charlotte Patterson [her sister, who lived on the same lot] to come and see what was the matter;" and that she afterwards washed and dressed the child for burial because nobody else came. Two women, who came in on hearing of the death of the child, found it dressed for burial, and testified that defendant objected to having it undressed.

Charlotte Patterson was examined as a witness on the preliminary examination of the defendant before a justice of the peace but was not present at the trial. It was shown that she was out of the state, and beyond the jurisdiction of the court. The magistrate further testified "that she told him she was going to leave for fear that the defendant would charge her with having killed the child." Her testimony, as detailed by the magistrate, was: "I was going out of the yard gate to pick blackberries, and met the child. It was dead, and she said it had fallen in a pit, she believed, and she thought it was dead." Defendant objected, and excepted to the admission of this evidence.

W Forbes, for the prosecution, who was a member of the coroner's jury, testified: "The child was badly bruised all over, as if beaten, and its neck was broken. The child's neck looked like it had been struck with a hot iron, and looked scarred." Defendant objected to this portion of said witness' testimony, because it was the expression of an opinion, and was not competent evidence. The court overruled the objection, and defendant duly excepted.

It was proved on the part of the defendant that she was subject to epileptic fits; that "she talked and acted foolish" after these fits, and sometimes just before a fit came on; that she had a fit on the evening of the day of the child's death, and two on the next day; but there was no evidence that she had a fit on the morning the child was killed, and she herself testified that she had none. Two physicians testified as to the different kinds of epilepsy, and the effects of each.

The defendant requested seven charges in writing to be given to the jury, and duly excepted to the refusal of each. The first was: "The probability of reasonably accounting for the death of the deceased by accident, or by any other cause than that of the unlawful act of the defendant, must be excluded by the circumstances proved; and it is only when no other hypothesis will explain all the conditions of the case, and account for all the facts, that it can be safely and justly concluded it was caused by the defendant." The second, third, fourth, and fifth charges each related to the defense of insanity. The other charges were: "(6) The suggestions of counsel in their argument to the jury, founded on the evidence in the case, may give rise to such a reasonable doubt as will justify the jury in acquitting the defendant. (7) It is the safer and better course for the jury to acquit a guilty person, rather than run the risk of convicting an innocent one."

Defendant was convicted of murder in the second degree, and sentenced to 10 years' imprisonment. From the verdict and sentence she appeals.

Sam B. Browne and A. Anderson, for appellant.

W. L. Martin, Atty. Gen., for the State.

SOMERVILLE J.

1. The witness Charlotte Patterson was shown to have been out of the state, and beyond the jurisdiction of the court, at the time of the trial; being either permanently or indefinitely absent. This was a sufficient reason to authorize the introduction of secondary evidence of what this witness had previously deposed to on the preliminary investigation of the same case before a committing magistrate. In Lowe v. State, 86 Ala. 47, 5 South. Rep. 435, we held this principle to be applicable as well to criminal as to civil cases, and this rule has been since reaffirmed in South v. State, 6 South. Rep. 52, (decided at the present term.)

2. The statement of the witness Forbes, who was one of the coroner's jury, and had investigated the cause of the death of the deceased child, was to the effect that "it was badly bruised all over, as if beaten, and its neck was broken." "The child's neck," the witness said, "looked like it had been struck with a hot iron and looked scarred." Construing the exception taken to apply only to the latter part of this witness' testimony, we think it free from the objection that it was the expression of a mere opinion, and not the statement of a fact. The resemblance of things - or their likeness, similitude, or similarity-is ordinarily rather a conclusion of fact than of opinion, and it is common for witnesses to be permitted to depose to...