Russell v. State
| Decision Date | 13 April 1920 |
| Docket Number | 4 Div. 623. |
| Citation | 17 Ala.App. 436,87 So. 221 |
| Parties | RUSSELL v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied May 12, 1920.
Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.
Georgia Russell was indicted for murder in the first degree convicted of manslaughter in the first degree, and she appeals. Affirmed.
Certiorari denied 87 So. 227.
The charge was that defendant killed Claudie Jones by cutting her with a knife. The witnesses Gussie Lewis and Willie Austin testified that at times the defendant would act peculiarly that she would curse, shut herself up in her room, and not let any one come in. Gussie Lewis was asked, "When that time came, how would she do, how would she talk?" and she answered, "She would just act fractious, and snap you up, and just act crazy." On motion of the state the words, "just act crazy," were stricken out. In answer to a question, the witness Austin answered that "She wouldn't talk like she had good sense," which was stricken on motion of the state.
Farmer Merrill & Farmer, and Dothan, for appellant.
J.Q. Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The defendant, a woman, was indicted for murder in the first degree; was tried and convicted of manslaughter in the first degree, and was sentenced to imprisonment in the penitentiary for a term of five years. When arraigned the defendant pleaded (1) not guilty, and (2) not guilty by reason of insanity.
On this appeal it is insisted that the court in many instances erred in its rulings upon the admission and rejection of testimony. The refusal to give three special written charges requested by the defendant is also complained of as being error.
The exceptions reserved to the rulings of the court upon the evidence will be here treated in the order in which they occurred upon the trial as shown by the transcript. The questions propounded by the state to witness Hawk upon redirect examination, to wit, "I will ask you if it is not a fact that Georgia Russell didn't cut Claudie after she fell," related to the res gestæ of the offense, and the objection interposed to this question by defendant was properly overruled.
The court did not err in overruling the objection of defendant to the question asked witness Ed Bryant by the state, "Did she [defendant] say anything about what she was going to do to Claudie [deceased]?" The purpose of this question was clearly to prove threats made by defendant against deceased, and the answer of the witness "Yes, sir; she said she was going to kill her," was responsive to the question, and was not subject to the motion to exclude same.
On redirect examination by the state of the witness Ed Bryant, the court, over the objection of the defendant, permitted the question, "Did you meant to tell Mr. Farmer that Georgia, or Claudie, had a knife in her hand?" There was no error in this ruling, for the witness was thus afforded an opportunity of correcting a mistake or inadvertence he had made in his testimony on cross-examination. His answer to the question "Claudie (deceased) didn't have no knife," makes it clear that the question was proper, and the answer had the effect of removing the uncertainty of this witness' testimony on this point and of correcting the manifest mistake made by him in his testimony on cross-examination. The rule of evidence permitting a redirect examination of one's own witness is provided to meet just such conditions.
On cross-examination of defendant's witness Wallace Cawthon, the state asked:
"Didn't deceased say to you in the presence of defendant at the time you separated them that that was defendant's knife, and she took it away from her; and isn't it a fact that defendant didn't deny it?"
The defendant objected to the question, but the objection was clearly without merit for the reasons: (1) That it related to the res gestæ; and (2) that it was a statement of an inculpatory nature, made in the presence and hearing of defendant. Furthermore, the answer being, "No sir," rendered the question without prejudice, even if there was error in overruling the objection of defendant.
The next exception as shown by the record was to the action of the court in overruling defendant's objection to question asked of this same witness: "Don't you know that the blood that was on defendant came out of deceased?" The record clearly shows that, "This question was not answered by the witness," but, notwithstanding there was no answer to the question, the defendant made a motion to exclude the answer. A motion to exclude something that has not occurred during the trial is, of course, without merit. The further question by state to the same witness, "Didn't you hear deceased say to the defendant, 'You have cut me, and I could cut your throat, but I won't'?" was not subject to the objection interposed, as the inquiry related to the res gestae. Moreover, it was rendered harmless by the answer of witness, who replied, "No, sir."
It is true that since the days of the Garden of Eden the human race has entertained an antipathy for snakes, and that there prevails an undying enmity, an enmity of divine origin, between man in general and the venomous reptile known as a serpent or snake; but it is also equally true that oftentimes nicknames are applied or given to individuals without rhyme or reason, and without any reference whatever to the characteristics of the persons so nicknamed being like or of the same nature as that of the name applied. Certainly, it cannot be insisted that a jury would be authorized to discredit a witness or disbelieve his testimony because of his name, or, as for that matter, his nickname. The rules of evidence permit no such thing; to the contrary, they provide several means of impeaching a witness, unnecessary to enumerate here; but, as before stated, no rule of evidence exists which will authorize a jury to discard or to disbelieve the testimony of a witness because of his name without reference to the utter lack of euphony in the name, or how obnoxious it might be in its common acceptation. The principles of law cited by appellant's counsel sustaining the proposition that evidence in a case should be confined to the points in issue are too well settled to permit of discussion. We are of the opinion, however, that these principles are not in point here, and that the insistence that the admission of this evidence injuriously affected the substantial rights of the defendant is wholly without merit.
The remaining exceptions as shown by the record relate to the rulings of the court upon the evidence offered in connection with defendant's plea of "not guilty by reason of insanity."
It may be here stated that where it is clearly proven that the offense charged has been committed by the defendant, the law presumes she was sane at the time of its commission; in other words, the burden is upon the state to prove beyond a reasonable doubt and to a moral certainty that the defendant committed the crime; and the law presumes every man to be sane. Williams v. State, 13 Ala.App. 133, 69 So. 376. The law imposes upon the defendant the burden of proving her plea by a preponderance of the evidence, to the reasonable satisfaction of the jury. McGhee v. State, 178 Ala. 4, 59 So. 573; Code 1907, § 7175. A reasonable doubt of the defendant's sanity, raised by all the evidence, does not authorize an acquittal. Martin v. State, 119 Ala. 1, 25 So. 255.
The writer of this opinion does not hesitate to say that the soundness of this last proposition appears very doubtful to him, but so far as this court is concerned it may be said that "the water has passed under the bridge," for in the face of the many decisions of the Supreme Court to this effect, we are without authority to hold otherwise. This proposition...
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