Richardson v. State, 1 Div. 657
| Decision Date | 26 May 1953 |
| Docket Number | 1 Div. 657 |
| Citation | 65 So.2d 715,37 Ala.App. 194 |
| Parties | RICHARDSON v. STATE. |
| Court | Alabama Court of Appeals |
Wm. C. Taylor, Mobile, for appellant.
Si Garrett, Atty. Gen., and Thos. M. Galloway, Asst. Atty. Gen., for the State.
The indictment in this case charges murder in the first degree. The trial resulted in a conviction of murder in the second degree.
The deceased was the wife of the accused.
The evidence for the State tended to establish that the deceased was struck a very severe blow behind or under the left ear which caused fractures to bones in that area and lacerations, contusions, softening and hemorrhages to vital brain structures or tissues. Death followed within a few days after the injuries were sustained.
Prior to the trial, and again as a witness in his own behalf, the appellant accounted for the injuries to his wife by stating and testifying that as the two journeyed in an automobile he stated that he was going after some whiskey. This displeased his wife, and while the car was traveling at a speed rate of about thirty or thirty-five miles per hour she jumped out of the vehicle and received her bodily injuries in falling to the ground.
According to the evidence for the prosecution the character and nature of the wounds made this claim improbable and untenable.
The State introduced in evidence some garments which Mrs. Richardson was wearing at the time of concern. These exhibits were not forwarded to this court.
It is evincingly clear that this character of evidence is very material on the matter of determining whether the deceased jumped from a rather swiftly moving automobile, as the appellant claimed.
The situation confronting us is allustrative of the wisdom of the rule which provides that appellate courts cannot review the propriety of the refusal of the general affirmative charge if the record does not contain all the evidence. 7 Alabama Digest, Criminal Law, k1121(2).
One question of critical concern is directed to the rulings of the trial judge in admitting expert testimony.
Dr. Wert and State Toxicologist Nelson Grubbs performed an autopsy on the deceased. All of the evidence relating to the character, nature, and extent of Mrs. Richardson's injuries came from this source. In other words, no witness gave testimony as to conditions which were observed prior to death.
Apparently the autopsy was performed with great care and accuracy. The probable cause of the injuries seemed to be of prime concern.
Both experts went much into detail in describing and delineating the findings incident to the examination. In the main they gave identical descriptions in their testimony.
None of the appellant's objections were directed to questions propounded to Dr. Wert.
Mr. Grubbs qualified as a toxicologist. He has testified at the trial of many cases in this state. His training and experience are well known to the legal profession. See DeSilvey v. State, 245 Ala. 163, 16 So.2d 183, for a statement of the qualifications of this witness.
Whether or not a witness is shown to possess the essential and requisite qualifications of an expert is a preliminary matter which is addressed largely to the discretion of the presiding judge. Johnson v. Battles, 255 Ala. 624, 52 So.2d 702; Lovejoy v. State, 33 Ala.App. 414, 34 So.2d 692.
Mr. Grubbs testified that the temporal bone was broken inward into the cavity of the head and was pushing against the brain.
The solicitor then propounded this question: 'Now then Doctor, from your examination of that could you tell us what direction force was applied to that bone would be, how that was?'
Over timely objections he was permitted to answer as follows: 'Based on the formation of the other bones in the head and the trauma observed on the outside of the body, it is my opinion that this blow was delivered from an angle of approximately forty-five degrees with the vertical, that is with the center line through the skull, and in an upward direction.'
The authorities are committed to the rule that an expert witness cannot give evidence of his opinion of the relative positions of the combatants when a shot was fired. The question of instant concern is not governed by this doctrine. The injuries disclosed certain bone breaks and tissue pressures.
It was not beyond the ability of the expert to determine the direction or angle of the outward force which caused these conditions.
We think the ruling of the court was without error and comes under the influence of these authorities: Mathis v. State, 15 Ala.App. 245, 73 So. 122; Roan v. State, 225 Ala. 428, 143 So. 454; McKee v. State, 35 Ala.App. 174, 44 So.2d 777; Clark v. State, 18 Ala.App. 209, 91 So. 328; Lewis v. State, 23 Ala.App. 92, 121 So. 447; Kozlowski v. State, 248 Ala. 304, 27 So.2d 818; DeSilvey v. State, supra.
Mr. Grubbs was allowed to state that the cause of death was an injury to the brain as a result of the broken bone being forced into...
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