Smith v. State, 1 Div. 499.

• Decision Date: 19 June 1945
• Docket Number: 1 Div. 499.
• Citation: 23 So.2d 615,32 Ala.App. 209
• Court: Alabama Court of Appeals
• Parties: SMITH v. STATE.

23 So.2d 615

32 Ala.App. 209

SMITH v. STATE.

1 Div. 499.

Alabama Court of Appeals

June 19, 1945

Rehearing Denied Aug. 7, 1945.

Johnston McCall & Johnston, of Mobile, for appellant.

Wm N. McQueen, Acting Atty. Gen., and Frank N. Savage, Asst Atty. Gen., for the State.

RICE Judge.

We quote the Attorney General: 'The appellant was indicted by a grand jury of Washington County, Alabama, on March 28th 1944 for first degree murder for killing Eugene Smith, her husband, by cutting him with a razor. She was tried by a jury on May 8th 1944, and found guilty of manslaughter in the first degree and sentenced to serve imprisonment in the penitentiary for the term of five years.' This appeal followed.

The facts, as developed by the testimony, are many and involved. Able counsel here representing the State and the appellant have filed elaborate briefs. But, keeping our opinion within any reasonable length, it would not be possible to extract from either of said briefs any satisfactory summary of the evidence.

So we will content ourselves by simply stating that it appears that appellant, a widow some 24 years of age, with two children married Eugene Smith--now deceased--a widower, some 48 years of age, with four of five children, within a space of some seven weeks from the time of the death of her first husband.

They all lived together, after a manner, in the home of Eugence Smith, for some four years, until the union between appellant and Eugene Smith was fatally severed by a rezor--an 'old fashioned' razor--wielded by appellant, which razor not only severed said union, but well nigh severed Eugene's head from his shoulders. In the language of the dreams of spitefully unhappy married women, appellant literally 'cut her husband's throat from ear to ear.'

Her pleas on the trial were 'not guilty,' and 'not guilty by reason of insanity.'

As stated before, we will not undertake to summarize the sordid testimony. Let it suffice to say that it well tended to support appellant's plea of 'not guilty'--that is, not guilty by reason of self-defense.

And this plea of hers was submitted to the jury under instructions which we think complete, correct, and proper. The jury were evidently much impressed, as is reflected in the verdict which they returned.

But the trial court omitted and refused to charge the jury on appellant's plea of 'not guilty by reason of insanity'--this, we gather, because he took the view there was no evidence to sustain it. And we think he was correct in so dong. Seldom have we been permitted to read an abler brief on 'insanity as a defense to crime' than the one submitted here on behalf of appellant by her distinguished counsel. But said brief, with all the ability which it manifests, omitted and omits a vital factor.

With the most persuasive logic--buttressed by unquestioned authority, i. e., decisions by our Supreme Court--appellant's counsel trace the domestic life of appellant and deceased from its hasty inception, through the four years of its tragic course, to its final, fatal, denouement, detailing instances of cruelty, abuse, and horrifying threats on the part of Eugene Smith toward appellant, with convincing argument that all such, cumulative over the years, might well cause appellant's mind to become unbalanced and irresponsible. And as a sort of 'peroration,' as it were, appellant's counsel closes his argument with this paragraph, viz:

'We have set out briefly above the melancholy facts leading up to the fatal tragedy. It is a lurid story of a brutal and drunken husband, twice the age of his wife, jealous of every man, and suspicious of every circumstance and act of her life, driving her through three years of untold anguish, abysmal unhappiness and torturing hell. In addition to inflicting physical punishment upon her, he tore at the very heartstrings of her existence in depriving her of her baby, who, at the time of the killing, was only a year old. If it be true that mental disease sufficient to generate legal irresponsibility may be the product of sorrow, worry and inhuman abuse, then the Court indeed committed a grave error in refusing to submit to the Jury the issue of insanity in this case.'

But counsel omit the vital factor, we referred to above, that is, did this treatment produce insanity?

The law is--and, by the way, the best statement of it that we have found was made by this court--that 'a jury have no right to infer the existence of insanity from the existence of a cause which may have some tendency to produce it, unless there is some evidence before them that insanity actually followed as a result of the possible cause.' Milford v. State, 2 Ala.App. 104, 57 So. 96, 97.

As was said by the Supreme Court of Indiana in Sawyer v. State, 35 Ind. 80: 'If it were a case where a given effect must follow the cause, there would be force in the argument because proof of the cause would be proof of the effect. But we know that the various causes that may tend to produce insanity very frequently fail to produce...