Reeder v. State

• Citation: 210 Ala. 114,97 So. 73
• Decision Date: 07 June 1923
• Docket Number: 8 Div. 563.
• Parties: REEDER v. STATE.
• Court: Supreme Court of Alabama

97 So. 73

210 Ala. 114

REEDER v. STATE.

8 Div. 563.

Supreme Court of Alabama

June 7, 1923

Rehearing Denied June 30, 1923.

Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.

Jim Reeder was convicted of murder in the first degree, and appeals. Affirmed.

Charges 30 and 31, given for defendant, are as follows:

"30. If there is a probability of defendant's innocence, he should not be found guilty.

"31. The probability of defendant's innocence is a just foundation for a reasonable doubt of his guilt, and therefore for his acquittal."

After reading charge 30 to the jury, the court stated:

"Now, I explain that charge to you by saying that the word 'probability' means that, if there is more evidence of the defendant's innocence than there is of his guilt, then he should be found 'not guilty."'

And after reading charge 31, stated:

"I explain that charge to you, gentlemen, by saying this word 'probability' means if there is more evidence of his innocence than there is of his guilt, which means that if there is more evidence of the defendant's innocence than there is of his guilt, that there is a just foundation for a reasonable doubt of his guilt, and therefore for his acquittal."

The following charges were refused to defendant:

"9. I charge you, gentlemen of the jury, that if you could reasonably construe the evidence in this case so as to find that some party other than the defendant killed the deceased, then you must acquit the defendant, although you believe it probable that the defendant killed the deceased.

"10. I charge you, gentlemen of the jury, that although you may think that it is probable that the defendant killed the deceased, still, if you can reasonably construe the evidence in such a way as to be consistent with the theory that some one other than the defendant killed the deceased, you must acquit him.

"14. I charge you, gentlemen of the jury, that, before you should convict the defendant in this case, the hypothesis of guilt should flow naturally from facts proven and be consistent with all of them.

"22. I charge you that, if the testimony in this case in its weight and effect be such as that two conclusions can be reasonably drawn from it, the one favoring the defendant's innocence and the other tending to establish his guilt, you must acquit the defendant, although you think it probable that he is guilty.

"23. I charge you, gentlemen of the jury, that, if the witness Mrs. Morgan has been contradicted in any material fact, then you may disregard her entire testimony, if you see proper so to do.

"24. I charge you, gentlemen of the jury, that, if any witness in this case has sworn falsely to any material fact in this case, then you may disregard his or her entire testimony, if you see proper so to do.

"25. I charge you that, if any witness has been contradicted upon any material fact in this case, then you disregard his or her testimony, if you see proper so to do.

"37. I charge you, gentlemen of the jury, that what the solicitor has said in his closing argument in this case is not evidence, and the only evidence in this case is the testimony of the witnesses that have been introduced, and you, and each of you, should be convinced beyond a reasonable doubt, from the evidence in the case, that the defendant is guilty before convicting the defendant."

Wert & Hutson, of Decatur, and J. N. Powell, of Albany, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

THOMAS J.

The charge was infanticide. The conviction and punishment were for murder in the first degree, by imprisonment for life.

The indictment was not subject to demurrer interposed. Reese v. State, 90 Ala. 624, 8 So. 818. The fifth or last count of the indictment charges that Jim Reeder "unlawfully and with malice aforethought killed a female child who had no name, the child of Emma Johnson, by crushing her skull,", etc. This is a sufficient averment of the surname of the child, it being averred that it was the "child of Emma Johnson." The failure of allegation of the given or Christian name of the female child, who is averred to have been unlawfully killed, is met by the averment that it "had no name," and there were no contradictory averments as to the name of the child, as is insisted by appellant.

In Jones v. State, 63 Ala. 27, the holding was that an indictment which described the defendant as "Douglass Jones, alias Dug Jones, whose true Christian name is to this grand jury unknown," is inconsistent, and will not support a conviction. That indictment does not present a parallel to the instant count. In the case of O'Brien v. State, 91 Ala. 25, 8 So. 560, the indictment charged that "W. P. O'Brien, whose Christian name is to the grand jury unknown," etc., and was held as an averment by the grand jury that the defendant had a Christian name, not expressed by the letters used (W. P.), but which was to the grand jury unknown. The announcement is contained in Morningstar v. State, 52 Ala. 405, as to the description, with certainty, required as to the party injured by the larceny, that an indictment which described the owner of the property stolen by her surname only, without any averment that her Christian name was unknown to the grand jury, was bad on demurrer. It will be observed of that issue that the inquiry was of the ownership of the property, and hence the requirement that both the Christian and sur name should be stated. In the case of Wilson v. State, 128 Ala. 17, 25, 29 So. 569, 571, the indictment was for murder, naming the defendant as "Robert Wilson, alias Duncan," and charged him with the murder of "Clarissa, alias Clara King, alias Cain," and the court said that the offense was charged in the Code form, and that:

"It was permissible to name the defendant under an alias. *** If the indictment lacks certainty concerning the identity of the person killed, or lacks averment excusing uncertainty in that respect as that person was not otherwise known to the grand jury, than as therein named, such defects might have been available here if they had been made in the trial court."

In Viberg v. State, 138 Ala. 100, 35 So. 53, 100 Am. St. Rep. 22, it was said that it was unnecessary to repeat the Christian name before the surname if the name of the defendant was averred under an alias. See, also, Haley v. State, 63 Ala. 89. The foregoing cases were not to the effect that the ground of demurrer assigned to the fifth or last count of the instant indictment should have been sustained. There was no uncertainty in this count, in which the murder charged was that of that infant child of Emma Johnson, it being averred that said child had not been given a Christian name. There was no error in overruling demurrer to the indictment.

All the rulings on the testimony were made on the cross-examination of witnesses, with two exceptions to which we shall refer later. It is a well-settled rule that in the cross-examination of witnesses there is a wide latitude resting in the sound discretion of the court, and unless it appear that palpable error has been committed to the prejudice of the defendant, in limiting his right of cross-examination, such rulings will not be interfered with. 14 Mich. Ala. Dig. "Witnesses," § 189 et seq. p. 1148. The question propounded to the witness, "Did you intend to put anything on it?" to which the state objected and was sustained, and to which defendant duly excepted, called for an uncommunicated motive or intention that was not admissible. 1 Mayf. Ala. Dig. § 15, p. 329.

The state proved without objection that defendant was the father of the newborn infant that was murdered; that defendant was in close proximity when the child was born, and came at a later hour during the night and took it away; that the dead body was found next morning, buried near the place of its birth; that its skull was crushed; and that this latter fact tended to show that its death was caused by violence at the hands of some human agency, rather than by being exposed to the cold or by freezing. Evidence that defendant was the illegitimate father of the child was admitted (with other evidence) as tending to show motive on his part for its destruction.

The defendant sought by cross-examination of the mother of the child to show that within the period of gestation she had consorted with men other than defendant. This tended to shed light upon the positive statement of the witness that defendant was the father of the child. However, the question "Haven't you received the company of men frequently, and haven't you done so up there for many years?" was not sufficiently definite as to call for the admission or denial of criminal intercourse on the part of witness, and was...