Sanders v. State

• Decision Date: 06 June 1918
• Docket Number: 1 Div. 11
• Citation: 202 Ala. 37,79 So. 375
• Parties: SANDERS v. STATE.
• Court: Alabama Supreme Court

79 So. 375

202 Ala. 37

SANDERS v. STATE.

1 Div. 11

Supreme Court of Alabama

June 6, 1918

Appeal from Circuit Court, Mobile County; Norvelle R. Leigh, Jr. Judge.

Albert Sanders was convicted of murder, and he appeal. Affirmed.

Brooks & McMillan and J.B. Jenkins, all of Mobile, for appellant.

F. Loyd Tate, Atty. Gen., and David W.W. Fuller, Asst. Atty. Gen. for the State.

McCLELLAN J.

The appellant has been sentenced to death for the murder of Mrs Julia May Hess. The corpus delicti was proven. There was evidence tending to show that her death was caused by knife wounds or strangulation, or both, thus justifying the trial court in refusing to the defendant the general affirmative charge on the theory that the second count was entirely unsupported, in a material respect, by the evidence. The issue due to be submitted to the jury was whether the appellant was a guilty agent in the perpetration of this brutal murder; the theory of the prosecution being that the defendant and Fisher Brooks robbed and killed Mrs. Hess. The appellant is a negro. He was a taxicab driver in Mobile. Fisher Brooks, negro, was also a taxicab driver there. Brooks was found guilty of the murder of Mrs. Hess, and was hanged at Mobile on August 3, 1917. Brooks had been convicted before appellant's trial took place on July 19-21, 1917. As indicated, the guilt vel non of the appellant was, under the whole evidence, a question to be decided by the jury.

The soundness of a conclusion that appellant was a guilty participant in the murder of Mrs. Hess depended upon the credence to be accorded the testimony, circumstantial as well as positive, of the witnesses. The evidence pointing to appellant's guilt was not entirely circumstantial. There was important evidence against the appellant that was positive in character and effect. Since the evidence against the appellant was not entirely circumstantial, the trial court was justified in refusing these of the defendant's special requests for instructions: (d), 5, 11, and 12, which the report of the appeal will reproduce.

There was no error in declining to allow the defendant to repeat in inquiry to jurors as they were being qualified, a question with reference to their freedom from bias or prejudice that, the bill of exceptions recites, had been previously propounded by the court to the persons called to jury service in that cause.

Mrs. Hess was killed on Monday, about 2 a.m., May 21, 1917. Her body was thrown from a bridge into a stream in Mobile county. Her place of residence, with her husband, was some distance from Mobile. The body rose to the surface of the stream, and was recovered on Thursday following her death. It was disfigured. The husband identified the body as being that of his wife. He produced a photograph on which, he testified, her living likeness was reproduced. The prosecution offered this picture in evidence, and over defendant's objection it was admitted and passed to the jury. The photograph, when thus authenticated, was admissible in evidence for the purpose of identifying the body as being that of Mrs. Hess. Luke v. Calhoun County, 52 Ala. 115; Udderzook v. Commonwealth, 76 Pa. 340; People v. Durrant, 116 Cal. 179, 48 P. 75; Kansas City, etc., R.R. Co. v. Smith, 90 Ala. 25, 27, 8 So. 43, 24 Am.St.Rep. 753; Wilson v. United States, 162 U.S. 613, 621, 16 Sup.Ct. 895, 40 L.Ed. 1090; 9 Ency.Evi. pp. 772, 773, 780, 781; Malachi v. State, 89 Ala. 134, 139, 8 So. 104; Rollings v. State, 160 Ala. 82, 49 So. 329. This rule's observance is not affected, one way or the other, by the fact that there is in the evidence given by the witness or witnesses no actual dispute as to the identity of the body of the deceased.

Bush a fellow prisoner in the Mobile jail with Fisher Brooks and this defendant, was introduced by the state to testify to a conversation between Fisher Brooks and the defendant, during the pendency of the defendant's trial, which the witness said he overheard from his cell above the line of cells occupied, respectively, by Brooks and the defendant. If a predicate for the introduction of this conversation was necessary, as upon the notion that its recital involved a confession by defendant, or implications to that effect, the condition was afforded by the preliminary testimony of the witness, whereby it was shown that neither the statements attributed to the defendant nor those attributed to Brooks were otherwise than voluntary. There was no error in the admission of the testimony of the witness Bush. It was, if credited by the jury, material and relevant to the issue of guilt vel non, as well as in its quality to reflect light upon the truth of the statements...