Rowe v. State

• Decision Date: 21 January 1943
• Docket Number: 3 Div. 379.
• Parties: ROWE v. STATE.
• Court: Alabama Supreme Court

11 So.2d 749

243 Ala. 618

ROWE v. STATE.

3 Div. 379.

Supreme Court of Alabama

January 21, 1943

Appeal from Circuit Court, Montgomery County; Eugene W. Carter Judge. [Copyrighted Material Omitted]

The indictment charges, in count 1, that accused killed the deceased "by hitting or striking him with a rock or some hard substance", and, in count 2, "by hurling or throwing his body from a bridge into the Alabama River."

The following charges were refused to defendant:

"2. The court charges the jury that if you believe from the evidence that the deceased Blakey met his death by drowning you cannot find him guilty, as there is a fatal variance between the proof offered by the State and the allegations in the indictment.

"A. The court charges the jury that if you believe from the evidence that the deceased Blakey was alive when his body was thrown from the bridge over the Alabama River, and you further find from the evidence that the deceased was dead when he struck the water in the river, you cannot find the defendant guilty under the indictment before you.

"B. The court charges the jury that if you believe from the evidence that the deceased Blakey was alive when his body was thrown from the bridge, you cannot find this defendant guilty unless you also believe from the evidence that his death was caused by his body striking the waters of the Alabama River.

"C. The court charges the jury that in order for you to convict this defendant under the second count of the indictment, you must find from the evidence that his death was caused by his body falling into or striking the waters of the Alabama River.

"D. The court charges the jury that in order for you to find this defendant guilty under the second count of the indictment, you must find from the evidence that the deceased was alive when his body went into or came in contact with the waters of the river.

"E. The court charges the jury that the second count of this indictment charges the defendant killed the deceased by hurling or throwing his body 'into the Alabama River', and the court further charges the jury that if you believe from the evidence that Blakey's death was caused by his body striking some object or objects in his fall before striking the waters of the river, you cannot find the defendant guilty under this indictment, as to its second count.

"F. The court charges the jury that if you believe from the evidence that the death of the deceased Blakey was caused by drowning, you cannot find the defendant guilty.

"G. The court charges the jury that before you can find the defendant guilty under the second count of the indictment, you must believe from the evidence that the death of deceased was caused by striking the waters of the Alabama River.

"L. The court charges the jury that if you believe from the evidence the deceased Blakey had suffered no mortal injury previous to the time his body was thrown from the bridge, you cannot find the defendant guilty under this indictment unless you further believe from the evidence and beyond a reasonable doubt that his death was caused by striking the water of the river.

"M. The court charges the jury that if you believe from the evidence the deceased Blakey had suffered no mortal injury previous to the time his body was thrown from the bridge, you cannot find the defendant guilty unless you believe from the evidence and beyond a reasonable doubt that his death was caused by coming in contact with the waters of the river, and not by striking one or more objects during his fall into the river waters.

"O. The court charges the jury that you cannot convict this defendant if you believe that his death was the result of striking one or more objects during the time of the fall of the deceased from the bridge and before his body made contact with the waters of the Alabama River.

"P. The court charges the jury that you cannot convict this defendant under the second count of the indictment if you believe he received his mortal injury after his body was thrown from the bridge but before it struck the water of the river.

"Q. The court charges the jury that if you believe from the evidence that the deceased was killed or had received a mortal injury prior to striking the waters of the Alabama River, you cannot convict this defendant."

State's witness, Kimbrough, Captain of the state highway patrol, testified that after defendant's arrest he was brought by members of the patrol to patrol headquarters; that witness had a talk with defendant and defendant made a statement. The court thereupon interrogated the witness, "Was there any force exerted against him to get him to make a statement? Did you hold out any hopes or inducements to him to get him to make a statement? Was he threatened in any way to get him to make a statement?"

Witness answered, "I did not and no one in my presence did, Judge." Witness gave the names of those persons present when defendant made the statement, and testified that the statement was typed by one of those present and signed by defendant in the presence of the persons named, who signed as witnesses.

On cross-examination by defense counsel said witness Kimbrough testified, in substance, that no threat or promise was made to defendant, by any other person, in the presence of witness, to induce him to make the statement.

E.W. Wadsworth, of Montgomery, for appellant.

Wm. N. McQueen, Atty. Gen., and Bowen W. Simmons, Asst. Atty. Gen., for the State.

THOMAS Justice.

The indictment was for murder in the first degree, in two counts, and was in compliance with the law. Wilson v. State, Ala.Sup., 8 So.2d 422. The verdict was "guilty of murder in the first degree and fix his punishment at death." The sentence and judgment of the court were in conformance thereto. No question for review is presented by the record or by defendant's counsel as to any compliance of the law preceding the date of the trial.

Defendant's recital of the facts is "that David Blakey's dead body was found in the Alabama River November 28, 1941, some six or seven miles below the Birmingham Highway Bridge. The evening of the 12th of that month, he met Charlie Ray Holland and Ellis Howard Rowe, drank and rode around with them, and alive or dead, was thrown from this bridge by one or both of them, with his hands tied." The two men were indicted jointly and tried separately. This defendant filed pleas of not guilty and not guilty by reason of insanity and was given the death sentence by the verdict of the jury.

This court has held that circumstantial evidence may be admitted to prove the corpus delicti and is sufficient if such is its effect. McDowell v. State, 238 Ala. 101, 189 So. 183; Hill v. State, 207 Ala. 444, 93 So. 460; Matthews v. State, 55 Ala. 187; Ryan v. State, 100 Ala. 105, 14 So. 766; Hunt v. State, 135 Ala. 1, 33 So. 329. That is, facts and circumstances tending prima facie to prove the corpus delicti may be aided by the admissions or confessions of accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction of guilt. Wilson v. State, Ala.Sup., 8 So.2d 422; McDowell v. State, supra; Henry Daniels v. State, Ala.Sup., 11 So.2d 756; Hill v. State, supra; Ryan v. State, supra; Stewart v. State, 18 Ala.App. 92, 89 So. 391.

The wounds on the body of deceased were described by expert and non-expert witnesses. There is no requirement of law that the witness describing the injuries to the body must be an expert. Pitts v. State, 140 Ala. 70, 37 So. 101; Hill v. State, 146 Ala. 51, 41 So. 621. To a better understanding of the objections and exceptions of counsel for the defendant to the introduction of evidence, and the insistence that certain refused affirmative charges requested as to the second count were error, the substance of some of the evidence of the state toxicologist as a witness for the state will be set out.

We hold that there were tendencies of evidence that warranted the trial court in submitting both counts of the indictment to the jury. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. There was no error in refusing defendant's charges C, D, E and F. Code 1940, T. 15, § 259, Form 79. The evidence shows no material variance as to either count. Stone v. State, 115 Ala. 121, 22 So. 275; State v. Seay, 3 Stew. 123, 20 Am.Dec. 66. The authorities on a variance are collected, in a criminal case, in Milam v. State, 240 Ala. 314, 319, 320, 198 So. 863.

Many of the refused charges ignore that death could have resulted from injuries alleged under the two counts of the indictment. For example, charge A ignores count 1 and demands an acquittal based on death prior to the impact to the water.

Charges B, C and D assume death by impact with the water and ignore the fact that death could have been caused as charged in the other count, by "striking with a rock or some hard substance."

Charges F, G and L ignore other causes of death than by drowning.

Charge M ignores other means of death charged in count 2 and instructs the jury to predicate verdict of death by impact with the waters. Charge O fails to predicate belief of jury on the evidence. Lewis v. State, 220 Ala. 461, 125 So. 802. Charge P is faulty for ignoring the other means of death available to the jury under the evidence and charged in count 2. The same is true of charge Q. We find no error in refusing the charges indicated above.

The record indicates objection to the introduction of the confession of this defendant. However, the necessary predicate was proven and preceded the introduction of the confession in evidence. Henry Daniels v. State, supra; Hunt v. State, 135 Ala. 1, 33 So. 329. In this action of the trial court there was no error.

The defendant had pleaded not guilty and not guilty by reason of...