Phillips v. State

• Decision Date: 10 October 1946
• Docket Number: 7 Div. 864.
• Parties: PHILLIPS v. STATE.
• Court: Alabama Supreme Court

28 So.2d 542

248 Ala. 510

PHILLIPS v. STATE.

7 Div. 864.

Supreme Court of Alabama

October 10, 1946

Rehearing Denied Jan. 16, 1947.

Roberts Cunningham & Hawkins, of Gadsden, for appellant.

Wm N. McQueen, Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.

The following charges were refused to defendant:

'13. The Court instructs the jury that in passing upon the action of the defendant the jury should not try him by the light of after-developed events--not hold him to the same cool and correct judgment which they are able to form. They should put themselves in his place and judge of his acts by the facts and circumstances by which he was surrounded.

'24. I charge you, Gentlemen of the Jury, that if you are reasonably satisfied from the evidence that the defendant is of unsound mind, you may consider that mental condition in the weight to be given by you to his written statement offered in evidence by the State.'

LAWSON Justice.

Lawrence N. Phillips was convicted of murder in the first degree and sentenced to death by electrocution. He has appealed to this court under the provisions of Act No. 249, approved June 24, 1943, General Acts 1943, page 217, Code 1940, Tit. 15, § 382(1) et seq., which act provides for an automatic appeal from the trial court in all cases in which the death sentence is imposed.

The three counts of the indictment charged appellant, a member of the Negro race, with the first-degree murder of Henry Louie, a Chinese, who operated a laundry in the City of Gadsden, Alabama. The counts of the indictment are identical except as hereinafter shown. The first count charges that appellant killed Louie 'by striking him over the head with a machinist hammer.' The second count charges that the crime was committed 'by striking him three times on the head with a machinist steel hammer,' while the third count charged 'by striking him three times on the head with a heavy metal hammer.'

Upon arraignment appellant pleaded not guilty and not guilty by reason of insanity.

There was no ground for quashal of the venire, arising from the fact that the name 'James B. Pruitt' was on the venire served on the defendant, whereas 'Joseph B. Pruitt' was the person who appeared for service on the trial of the defendant. It was shown that the person drawn for jury duty lived at 311 Henderson Street, Beat 29, Etowah County. That was the place of residence of the person who was summoned and who appeared for service. There was no one by the name of 'James B. Pruitt' who lived at that address. The trial court correctly overruled the motion to quash the venire. § 37, Title 30, Code of 1940; Savage v. State, 174 Ala. 94, 57 So. 469; Zininam v. State, 186 Ala. 9, 65 So. 56.

On Thursday, April 26, 1945, around 7:20 p. m., a police officer of the City of Gadsden discovered the body of Henry Louie in a building on Broad Street, wherein the deceased had operated his laundry. The body was found in a small room of the building between a commode and the wall. Louie had evidently been dead only a short time, as his body was still warm when discovered. He was dressed in work trousers and a shirt, both of which were bloody. His pockets were turned 'wrong side out' with the exception of the left front pocket of his trousers, in which the officers found approximately $50. The belt on his trousers was unfastened and his trousers were hanging down. There was human excrement in the unflushed toilet bowl. There were three 'holes' in the back of his head. The skull was crushed in one place. Blood was on the floor of the small room where the body was found and there were small drops of blood leading from this small room into another room located approximately in the middle of the building and referred to in the testimony as the 'drying room.' A considerable amount of blood was found on the floor of the drying room and on clothes (laundry) therein.

The evidence for the State tends to show that appellant went to the laundry operated by deceased at about 5 o'clock on the afternoon that Louie met his death. Annie Bell Phillips, wife of appellant, was an employee of deceased and was at the laundry at the time appellant entered the building through the back door. Shortly after entering appellant picked up a hammer. Deceased was in the 'drying room' with his back to the door, but saw appellant as he entered the door to that room. A struggle ensued wherein appellant hit the deceased three times 'over the head with the round end of the hammer.' Deceased fell on his face and appellant removed some money from the right front trousers pocket of deceased. Appellant left the building through the rear door. He met his wife just outside the building. They left together and later counted the money which had been taken from the deceased, which amounted to $85.60. Appellant gave $50 of the money to his wife. They proceeded to a pasture where the hammer was thrown into a branch or creek.

Appellant denies that he either hit or robbed deceased. However, he admits that he was at the laundry on the afternoon of the homicide. According to appellant he had heard many times that the deceased was engaging in acts of sexual intercourse with appellant's wife, Annie Bell; that as he was walking into the back door of the laundry he saw deceased and Annie Bell partially undressed, embracing in deceased's bedroom; that deceased saw appellant and started toward him; that appellant does not remember the events subsequent thereto, he 'just went crazy.'

Annie Bell testified in behalf of her husband. She testified that she engaged in an act of sexual intercourse with the deceased late in the afternoon of the day he died; that deceased left the room where this act occurred and shortly thereafter she heard a noise which frightened her and she ran out the back door partially unclad, but returned, put on her clothes, and immediately went home; that she did not see appellant at the laundry nor did she investigate to determine the cause of the noise which had frightened her. She claimed that she had engaged in acts of sexual intercourse with deceased on numerous occasions extending over a long period of time. According to her testimony she had worked for deceased for many months prior to his death except for a short period when she was ill. However, appellant and another employee of deceased testified that she had never worked for deceased prior to three weeks before he met his death.

In support of his plea of not guilty by reason of insanity, several witnesses called by appellant testified that they had known him, had seen him frequently, observed him, and that in their opinion he was insane. Their testimony tended to show that appellant had a difficult time in school, talked to himself, refused to bathe himself, and had no inhibitions as to his state of dress before others; that he had never held a job for any length of time.

In rebuttal the State offered the testimony of several witnesses who testified that in their opinion appellant was sane.

There is no requirement of law that the description of wounds on the body of a deceased person must be given by an expert witness. Rowe v. State, 243 Ala. 618, 11 So.2d 749; Hill v. State, 146 Ala. 51, 41 So. 621; Pitts v. State, 140 Ala. 70, 37 So. 101. The trial court did not err in permitting the expert and non-expert witnesses to testify as to the appearance and location of the wounds. Kilpatrick v. State, 213 Ala. 358, 104 So. 656; Hill v. State, supra; Terry v. State, 118 Ala. 79, 23 So. 776; Evans v. State, 120 Ala. 269, 25 So. 175; Thomas v. State, 24 Ala.App. 425, 136 So. 419; Gunn v. State, 24 Ala.App. 494, 136 So. 870.

However, only an expert can express an opinion as to the fatality of a wound. Jones v. State, 155 Ala. 1, 46 So. 579; Rash v. State, 61 Ala. 89; Hicks v. State, 247 Ala. 439, 25 So.2d 139. Appellant insists that the trial court erred in permitting State witness Jesse Cox to testify over the objection of the appellant that in his opinion the wounds which he observed on the head of deceased were sufficient to result in death. Cox is an undertaker with twenty-five years experience in that field and he has served as coroner of Etowah County for over three years. The fact that the witness Cox was coroner of the county did not qualify him to express an opinion as to the cause of death. Nor is an undertaker, as such, an expert on the question as to the cause of death of a deceased. Anderson v. State, 19 Ala.App. 606, 99 So. 778; Daniel v. State, 31 Ala.App. 376, 17 So.2d 542.

But it is not necessary that a witness be shown to be a practicing physician before he can express an opinion as to the cause of death. The rule is stated in the recent case of Hicks v. State, supra [247 Ala. 439, 25 So.2d 140], as follows: 'The nature of a wound or injury, its probable cause and effect can be stated by expert medical witnesses, or witnesses shown to be familiar with such question; such as, an undertaker, or others showing competency.' In the Hicks case, supra, it was held that a registered nurse was shown to be qualified to express such an opinion, and in the case of Wilson v. State, 243 Ala. 1, 8 So.2d 422, it was held that an interne who had no license or certificate from any State Board was competent to testify as to the cause of death.

In view of the predicate laid for his testimony and the statement of his experience in observing and examining wounds and the effect thereof, similar to the wounds that he observed on the head of deceased, we are of the opinion that the witness Cox was shown to possess the requisite qualifications to give an opinion as to the fatality of the wounds upon the body of the deceased. The question as to whether a witness is shown to possess the requisite qualifications is a...