Smarr v. State

• Decision Date: 06 August 1953
• Docket Number: 2 Div. 319
• Citation: 68 So.2d 6,260 Ala. 30
• Parties: SMARR v. STATE.
• Court: Alabama Supreme Court

Page 6

68 So.2d 6

260 Ala. 30

SMARR v. STATE.

2 Div. 319.

Supreme Court of Alabama.

Aug. 6, 1953.

Rehearing Denied Nov. 27, 1953.

Winton G. Wilson, Birmingham, for appellant.

Si Garrett, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.

LAWSON, Justice.

The appellant, Mattie Smarr, was indicted by a grand jury of Greene County on September 27, 1952, for the first degree murder of Ivory Posey.

Upon arraignment on November 27, 1952, accused pleaded not guilty and not guilty by reason of insanity. Trial was begun on December 8, 1952. On December 12, 1952, the jury returned a verdict of guilty of murder in the first degree and fixed punishment at death. Judgment and sentence were in accord with the verdict. From such judgment an appeal has been perfected to this court.

Appellant is a Negro woman approximately twenty-seven years of age. She was born in Greene County, where she lived until she was sixteen years of age, at which time she moved to Birmingham with other members of her family. In about 1950 she married Eddie Smarr, who evidently was raised in Greene County. In any event, his mother resided in or near the Mount Hebron community, a rural settlement in the western part of that county. Appellant has no children but a young boy, Eddie Smarr, Jr., four or five years of age, lived with appellant and her husband. This boy is evidently the son of appellant's husband by another woman.

On or shortly prior to September 22, 1952, appellant and Eddie Smarr, Jr., went from Birmingham to Greene County to the home of the mother of appellant's husband.

Willie and Alberta Posey, members of the Negro race, lived on a farm not far from the home where appellant was visiting her mother-in-law. The Poseys had nine children. Early on the morning of September 22, 1952, Willie and Alberta Posey went to work in a field some distance from their home. They left five of their children at home, namely, Lucy, twelve years of age; Ola Bee, eight years of age; Ivory, a boy, five years of age; Mattie Jean, two years of age; and a three-months-old baby girl, Cora May.

When Willie and Alberta returned to their home late in the afternoon of September 22, 1952, none of the children were at home. A search was begun to locate them. After some time Lucy, the twelve-year-old girl, was found wandering in a pasture some distance behind the Posey home. She had wounds on her face and head and was unable to talk coherently and at that time was unable to give any information as to the whereabouts of her little brother and three little sisters. The search continued. The bodies of three of the younger children were located in a creek. The body of one of the little girls was in the water, while that of the other had come to rest on top of some driftwood or other substance which had accumulated against a wire fence that was across the comparatively shallow creek. The body of Ivory, the five-year-old boy, was found with his face buried in soft wet sand.

Autopsies performed on the bodies of the children disclosed that the two little girls died as a result of drowning; Ivory, the five-year-old boy, died from a fractured skull.

Cora May Posey, the three-months-old girl, was not found that night.

Lucy Posey was a witness for the State. She testified substantially as follows:

The appellant, Mattie Smarr, came to the Posey home at about eleven o'clock on the morning of September 22, 1952, accompanied by Eddie Smarr, Jr. Mattie suggested that the Posey children go fishing with her. She left the house with Ola Bee, Mattie Jean, Ivory, and with the little boy, Eddie Smarr, Jr. Lucy and the baby remained at the Posey home. Later Mattie Smarr and all of the children who had left the Posey home returned except Mattie Jean, the two-year-old girl. Mattie Smarr told Lucy that Mattie Jean had gotten lost, but Ivory said that she had fallen into the creek. Lucy and Mattie Smarr then left the Posey home ostensibly in search of Mattie Jean. The other children remained at the Posey home. When Lucy reached the creek she saw Mattie Jean in the water. Mattie Smarr told Lucy to get in the creek to help Mattie Jean. When Lucy turned her back, Mattie Smarr pushed her into the creek. Lucy had no recollection of any subsequent events until she 'came to' in a Demopolis hospital.

Mattie Smarr and Eddie Smarr, Jr., remained in Greene County at the home of the former's mother-in-law until Wednesday morning, September 24, 1952, when they were driven to Birmingham by Mattie's brother and mother.

On the night of September 24, 1952, Willie Posey, the father of the dead children, went to the home of Mattie Smarr in Birmingham, accompanied by Mr. Frank Lee, the sheriff of Greene County, and three or four other officers. They found the three-months-old baby girl, Cora May Posey, in the bed with Mattie, who told them the baby was hers; that it was a boy born on the preceding Monday night. There was a new-looking bassinet in the room. The baby was unhurt and was returned to its home in Greene County that night.

Mattie Smarr was arrested for the murder of the Posey children and was taken to the Greene County jail at Eutaw. Shortly after her confinement in jail Mattie made a statement wherein she admitted that she killed the Posey children.

The evidence for the State not only showed the commission of the crime charged in the indictment, but that Mattie Smarr was the person who killed Ivory Posey as charged in the indictment. There was no evidence presented on behalf of the accused tending to controvert that evidence on the part of the State.

The accused did not testify and the evidence adduced on her behalf was all in support of her plea of not guilty by reason of insanity and that she was insane at the time of the trial.

We will discuss the insanity questions after having treated certain rulings of the trial court which occurred during the course of the trial.

Although the accused was not on trial for the killing of Ola Bee and Mattie Jean Posey, the three killings were parts of a single transaction, and were in fact inseparable. Each was of the res gestae of the other, and every fact and incident illustrative of one was competent also in illustration of the other. Keith v. State, 253 Ala. 670, 46 So.2d 705, and cases cited; Parsons v. State, 251 Ala. 467, 38 So.2d 209; Cantey v. State, 244 Ala. 108, 11 So.2d 844. Hence, the trial court did not err in permitting the State to prove the killing of Ola Bee and Mattie Jean Posey. Likewise, it was not error to permit the State to show the injuries to Lucy Posey and her physical condition at the time she was found. The attack on her was within the res gestae of the crime against her little brother and was admissible as shedding light on the acts, motive and intent of the assailant. Snead v. State, 251 Ala. 624, 38 So.2d 576, and cases cited.

Pictures of the scene of the homicide taken a short time thereafter are admissible in evidence. Blue v. State, 246 Ala. 73, 19 So.2d 11; Pilley v. State, 247 Ala. 523, 25 So.2d 57, and cases cited. It was not error to permit a witness to testify that photographs shown to him truly depicted the scene of the crime at the time of its commission, although such testimony was elicited prior to the time the photographs were admitted in evidence, inasmuch as the photographs were not seen by the jury at that time and were later introduced in evidence after proper preliminary proof adduced from the photographer.

Photographs of the dead body of Ivory Posey were admitted without error. Maund v. State, 254 Ala. 452, 48 So.2d 553. Under the facts of this case we are not willing to say that the trial court erred to a reversal in permitting the introduction in evidence of the photographs of the dead bodies of the two girls, Ola Bee and Mattie Jean. Grissett v. State, 241 Ala. 343, 2 So.2d 399.

It was not error to permit Sheriff Lee to testify that he went to the scene of the crime or in allowing testimony as to who were present when the bodies of the three children were found.

The qualifications of Dr. Nelson Grubbs as a State Toxicologist were admitted. It was proper to permit this witness to describe the wounds which he observed on the face and head of Ivory Posey and to testify that in his opinion such wounds were sufficient to have caused death. Phillips v. State, 248 Ala. 510, 28 So.2d 542. The testimony of this witness as to the cause of death of the two girls was likewise admitted without error.

An expert such as a physician or a qualified toxicologist may testify that in his opinion an injury resulted from a blow. Roan v. State, 225 Ala. 428, 143 So. 454.

It was not error to permit Lucy Posey to testify as to what the accused said when she came to the Posey home on the day of the homicide. All the attendant circumstances leading up to and eventuating in the homicide form a part of the res gestae. Smith v. State, 253 Ala. 220, 43 So.2d 821; Collins v. State, 138 Ala. 57, 34 So. 993. In Jones v. State, 181 Ala. 63, 61 So. 434, it was said: 'The acts, declarations, and demeanor of an accused, before or after the offense, whether part of the res gestae or not, are admissible against him, but unless a part of the res gestae are not admissible for him.' 181 Ala. at page 78, 61 So. at page 439.

Reversible error does not appear in the action of the trial court in permitting the solicitor to ask leading questions of the State's witness Lucy Posey, who at the time of the trial was approximately twelve years of age. Myhand v. State, Ala.Sup., 66 So.2d 544, and cases cited.

The examination of Sheriff Lee and Highway Patrolman Simpson, though not put under the 'rule' with the other witnesses, was in the discretion of the court. Webb v. State, 100 Ala. 47, 14 So. 865; Beaird v. State, 219 Ala. 46, 121 So. 38.

There is no requirement of law that the description of wounds on the body of a deceased person must be given by an expert witness. The trial court did not err in permitting the...