Roan v. State

• Decision Date: 09 June 1932
• Docket Number: 7 Div. 135.
• Citation: 225 Ala. 428,143 So. 454
• Parties: ROAN v. STATE.
• Court: Alabama Supreme Court

143 So. 454

225 Ala. 428

ROAN v. STATE.

7 Div. 135.

Supreme Court of Alabama

June 9, 1932

Rehearing Denied Oct. 13, 1932.

Appeal from Circuit Court, De Kalb County; A. E. Hawkins, Judge.

Tom Roan, alias Thomas Roan, alias Tom Rowan, alias Thomas Rowan was convicted of murder in the first degree, and he appeals.

Reversed and remanded.

See also, 24 Ala. App. 517, 137 So. 320.

Haralson & Son, C. A. Wolfes, and C.J. Scott, all of Fort Payne, and J. A. Lusk, of Guntersville, for appellant.

Thos E. Knight, Jr., Atty. Gen., for the State.

THOMAS J.

Defendant was indicted, tried, and convicted of murder in the first degree, and his punishment fixed "at life imprisonment."

It is of statutory requirement that when any person stands indicted for a capital felony, "the court must, on the first day of the term, or as soon as practicable thereafter, make an order commanding the sheriff to summon not less than fifty nor more than one hundred persons, including those drawn on the regular juries for the week set for the trial of the case, and shall then in open court draw from the jury box the number of names required, with the regular jurors drawn for the week, set for the trial, to make the number named in the order, and shall cause an order to be issued to the sheriff to summon all persons therein named to appear in court on the day set for the trial of the defendant, and must cause a list of the names of all the jurors drawn for the week in which the trial is set, and those drawn as provided in this section, together with a copy of the indictment, to be forthwith served on the defendant, by the sheriff." Section 8644, Code.

It has been declared that the terms of this statute are mandatory ( Morris v. State, 146 Ala. 66, 41 So. 274), and failure of the record to affirmatively show a compliance therewith necessitates a reversal. Howard v. State, 160 Ala. 6, 49 So. 755; Burton v. State, 115 Ala. 1, 22 So. 585, 587; Bankhead v. State, 124 Ala. 14, 26 So. 979; Watkins v. State, 89 Ala. 82, 87, 8 So. 134; Jordan v. State, 81 Ala. 20, 1 So. 577. In Burton v. State, supra, the Chief Justice observed that a judgment of conviction for such offense "cannot be supported, when drawn in question on error, unless it is shown affirmatively by the record that there was by the court performance of these duties," citing authorities and concluding, "The present record does not affirmatively show that a day was set for the trial of the cause, nor that there was the drawing of the special jurors for the trial, as the statute requires." (Italics supplied.)

The foregoing observations were of the failure of the court in the premises then being considered. And in Spooney v. State, 217 Ala. 219, 115 So. 308, these statutory provisions were again declared mandatory as to the specific provisions of the statute touching the court's order prescribing the constituents of a special venire. And in Irwin v. State, 220 Ala. 160, 124 So. 410, the effect of the decision was that clerical and ministerial mistake in preparing the venire and list served on the defendant do not warrant quashing the venire, unless prejudice results. Evans v. State, 209 Ala. 563, 96 So. 923; Stinson v. State, 223 Ala. 327, 135 So. 571; Sullivan v. State, 23 Ala. App. 10, 119 So. 243; McNutt v. State, 23 Ala. App. 43, 121 So. 432.

And inconvenience must yield to defendant's statutory rights to have the veniremen in capital cases summoned to appear and their qualifications determined on the day of the trial. Stinson v. State, 223 Ala. 327, 135 So. 571. Under the agreed statement of facts no prejudicial error was shown to have resulted to the defendant for failure of resummoning the special jurors drawn and summoned for the week in which the cause was set for trial.

The indictment was duly indorsed and presented; the indorsement was "A True Bill" signed by the foreman; and this was according to the statute. Spigener v. State, 62 Ala. 383; Williams v. State, 150 Ala. 84, 43 So. 182. This provision is mandatory. Wesley v. State, 52 Ala. 182; Ex parte Winston, 52 Ala. 419; Mose v. State, 35 Ala. 421; McKee v. State, 82 Ala. 32, 2 So. 451; Whitley v. State, 166 Ala. 42, 52 So. 203; Collins v. State, 23 Ala. App. 104, 121 So. 451; Layton v. State, 23 Ala. App. 297, 124 So. 406; Benson v. State, 68 Ala. 544; sections 4524 et seq., 8682, Code. The variance presented by the agreed statement of facts and motion, and the ruling of the court, between the original and the copy served on defendant-as to the initials of the foreman-was not of substance and did not invalidate the proceeding thereon to the trial.

The witness Dr. J. S. Marsh had qualified sufficiently as an expert to testify of the matter inquired about, and to the question, "Doctor just describe to the jury the location and the appearance and condition of any and all wounds you found on his person?" the witness answered: "He had six bullet wounds through his head (and also a lick on the back of the head) (The Court excluded this statement on the objection of defendant) One entered at the mouth, burning the lip and cutting off a front tooth, and made its exit at the junction of the base of the skull or the parietal bone with the occipital bone. One entered at the upper third of the left ear and made exit at the mastoid process behind the right ear. Another entered the upper third of the left ear. Another entered at the base of the skull just below the left ear and made exit at the top of the right of the parietal bone on the right side. Another entered in front of the last on the left side in front of the left ear and made exit on the left side above the ear and immediately above the ear. Another one entered on the right cheek and made exit behind and above the left ear. Another one entered below the right ear and made exit just in front and above the left ear. These all appeared to be bullet wounds."

This witness was further asked, "Were there any other wounds on him or about his head?" and answered: "The back portion of his skull was broken in a larger area than any exit of any bullet hole."

And that physician was permitted to describe the nature of the wound he examined on the back of the head, and to say it was his opinion as a physician, based upon his examination made on the body of deceased, that it was "made by external violence," and made by a blow; and on further inquiry, that there was a blow "on the back of the head" which "was not made by the exit of a bullet that had been fired into the head from somewhere." Clemons v. State, 167 Ala. 20, 52 So. 467; Mobile Light & R. Co. v. Therrell, 205 Ala. 553, 88 So. 677; Roberson v. State, 183 Ala. 43, 48, 62 So. 837.

It is the rule that to authorize "a witness to give an opinion as an expert, it must appear that, by study, practice, experience, or observation as to the particular subject, he has acquired a knowledge beyond that of ordinary witnesses; otherwise, he would not be an expert and his knowledge, skill, or experience is not considered sufficient to inform the court or to guide the jury in reaching a correct conclusion upon the subject of inquiry. Wigmore on Ev. § 556; Mobile Life Ins. Co. v. Walker, 58 Ala. 290; Commonwealth v. Farrell, 187 Pa. 408, 41 A. 382; Kilbourne et al. v. Jennings et al., 38 Iowa, 533; Burgess' Case, 119 Ala. 669, 24 So. 727." Clemons v. State, 167 Ala. 20, 52 So. 467, 471.

And in Rash v. State, 61 Ala. 89, Judge Stone held that a physician and surgeon of long experience with gunshot wounds, and an expert in such matters, who saw the body of the deceased shortly after she received the wound, may give his opinion as to how it was inflicted. Thaggard v. Vafes, 218 Ala. 609, 612, 119 So. 647; Rohn v. State, 186 Ala. 5, 65 So. 42; Landham v. Lloyd, 223 Ala. 487, 136 So. 815; Dumas v. State, 159 Ala. 42, 49 So. 224, 133 Am. St. Rep. 17; McKee v. State, 82 Ala. 32, 2 So. 451; Blackburn v. State, 22 Ala. App. 561, 117 So. 614.

The bill of exceptions recites:

"The Solicitor for the State then asked the witness:

"I will ask you if in your judgment as a physician, based upon the examination you made on the body of the deceased, if that wound in the back of the head was produced by an outside blow or lick? "To this question the defendant objected as incompetent, irrelevant and immaterial and calling for a conclusion of the witness.

"The Court overruled the objection. And to this ruling of the Court the defendant then and there duly excepted.

"And the witness answered and said: 'Yes, sir, it was made by external violence.'

"To this answer of the witness the defendant objected on the same grounds as to the question and that it was not responsive to the question and moved the Court to exclude the answer from the evidence.

"The Court thereupon said: 'Yes, I sustain the objection to that; state whether or not it was made by a blow?'

"To this question by the Court the defendant objected on the same grounds as to the question propounded by the Solicitor.

"This objection the Court overruled and to this ruling of the Court the defendant then and there duly excepted.

"The witness answered: 'Yes, it was made by a blow, an external blow."'

It is declared that an inference of fact as to the relative positions or attitudes of the parties, or other inferences of fact of which the jury are capable of drawing as any other person, should be left to the jury to infer or draw from the facts detailed. Landham v. Lloyd, 223 Ala. 487, 489 136 So. 815; McKee v. State, 82 Ala. 32, 2 So. 451; Dumas v. State, 159 Ala. 42, 49 So. 224, 133 Am. St. Rep. 17. There was no error in permitting the questions and answers set out above, and that the "back portion of his skull was broken in a larger area than any exit of any bullet hole; *** that it...