Senn v. State
| Decision Date | 20 December 1949 |
| Docket Number | 4 Div. 106. |
| Parties | SENN v. STATE. |
| Court | Alabama Court of Appeals |
J. A Huey, of Enterprise, and W. R. Martin, of Ozark, for appellant.
A. A Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty. Gen for the State.
The accused was indicted for murder in the second degree and was convicted of the offense of manslaughter in the first degree.
Appellant's counsel in brief cogently urges that the defendant was due the general affirmative charge.
It affirmatively appears that all of the evidence introduced in the trial below is not included in the record on this appeal; nor have the omitted exhibits been certified to this court. Among these are some photographs of the locale of the scene of the alleged crime.
Throughout the trial various witnesses were interrogated while these pictures were displayed, and many questions were directed in an effort to disclose detailed description and explanation of what the photographs depicted.
This clearly demonstrates the wisdom of the rule which provides that all of the evidence must be before the appellate courts before the propriety vel non of the refusal of the general affirmative charge can be reviewed. Alabama Terminal R Co. v. Benns, 189 Ala. 590, 66 So. 589; Bates v. Louisville & N. R. Co., 21 Ala.App. 176, 106 So. 394; York v. State, Ala.App., 39 So.2d 694.
This rule applies with equal force to a review of the action of the court below in denying the motion for a new trial on the ground that the verdict is contrary to the great weight of the evidence. Mobile City Lines v. Alexander, 249 Ala. 107, 30 So.2d 4; York v. State, supra.
Without dispute in the evidence the defendant killed one Carson Miles by shooting him with a shotgun. With the exception of the two participants in the affray, there were no eyewitnesses to the homicide.
The appellant testified that he went, in his automobile, to the home of a Negro man to attend to a business matter. After the visit in the house and when he returned to his car, which was parked in the yard nearby, he observed another automobile which was also parked a short distance away. Someone called from the latter vehicle, and the appellant took his shotgun and flashlight from his own car and proceeded toward the unidentified person in response to the call. The defendant's testimony at this point is:
A fair interpretation of the position of the prosecution is that the accused became enraged because of suspected amorous conduct between the deceased and appellant's wife and that he followed the deceased to the place of the homicide and there shot him.
It is apparent from the scant delineation of the evidence which we have set out that the matter of motive became a very material inquiry.
The record discloses that about fourteen months prior to the date of the homicide the appellant filed a suit for divorce, charging his wife with adultery 'with various men whose names are not known to your complainant.'
At the time of the trial of the case at bar this divorce proceeding was still pending, and the appellant and his wife were living together. We gather from the evidence that no testimony had been taken in support of the bill for divorce.
Over general objections the appellant was required on cross-examination to answer that he had filed said divorce on said grounds. Against the same objections the court permitted the State to introduce in evidence the original bill of complaint in the divorce case.
As to the latter ruling we hold that if proof that appellant had filed for divorce against his wife was pertinent and admissible as tending to show motive for the homicide, then the admission in evidence of only the original complaint in that cause was merely cumulative of an admitted fact and was error without injury. Stallings v. State, 249 Ala. 1, 32 So.2d 233; Weems v. State, 222 Ala. 346, 132 So. 711; Gettings v. State, 32 Ala.App. 644, 29 So.2d 677.
It should be noted that we are here dealing with only the introduction of the original bill of complaint.
In connection with the insistence that the evidence relating to the divorce matter was not admissible, it is pointed out in brief of counsel that the bill does not charge any named person with adulterous relations with appellant's wife and therefore in no event could motive for the homicide be cast in this indirect manner.
The wife of the accused testified that prior and subsequent to the time the divorce bill was filed the decedent, on numerous occasions, made unsuccessful attempts to 'date her.' Many of these incidents occurred while her husband was away from home in military service. The divorce proceedings were instituted after the appellant was discharged from the army. Mrs. Senn testified also that she told her husband about these proposals and solicitations and he replied that 'he would like for him to tend to his business; he was at home with us then.'
There was also testimony given by some of the relatives of the appellant that the deceased had importuned them to assist him in making dates and contacts with the wife of the defendant. This information was also conveyed by them to the appellant.
The record does not disclose that any person other than the deceased was suspected of attempts at adulterous relations with Mrs. Senn.
Appellant's wife testified that about twenty minutes prior to the time she heard the gun fire at the scene of the killing the deceased left her home after again making amorous approaches to her. She stated, however, that her husband was not at home at the time and that he did not return until after the fatal shooting.
We have endeavored to set out the tendencies of this aspect of the evidence in some detail in order that fair and full factual foundation may be laid for our review of the matter of instant concern.
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