Spicer v. State

• Decision Date: 11 June 1914
• Docket Number: 515
• Citation: 65 So. 972,188 Ala. 9
• Parties: SPICER v. STATE.
• Court: Alabama Supreme Court

65 So. 972

188 Ala. 9

SPICER v. STATE.

No. 515

Supreme Court of Alabama

June 11, 1914

Appeal from Circuit Court, Covington County; A.H. Alston, Judge.

Sam Spicer, Jr., was convicted of murder, and he appeals. Reversed and remanded.

Henry Opp and Powell & Albritton, all of Andalusia, for appellant.

R.C Brickell, Atty. Gen., W.L. Martin, Asst. Atty. Gen., and W.L Parks, of Andalusia, for the State.

MAYFIELD J.

Appellant was indicted, convicted, and sentenced to the penitentiary for life for the murder of his wife.

Deceased was shot with a shotgun, shortly after dark, and about the time she was finishing up her day's work. She had just about finished cleaning up her dining room after supper, and the other members of the family--her husband and two small children--were preparing to retire for the night. At the moment she was shot she was coming off a gallery or porch into one of the rooms. The person who did the shooting was just outside of the house and only a few feet--10 or 15--from the porch.

The deceased, in her dying declaration, described the circumstances of the shooting as follows, according to the testimony of the physician who attended her and dressed her wound:

"Mrs. Spicer was suffering untold agony when I got there. She was lying there severely and dangerously wounded and afterwards died from the effects of the wound. While she was there, right after I got there, she made a statement as to whether she was going to die, I guess you would consider it a statement. She said she was going to die and she was suffering a great deal. She said she couldn't live. She really didn't make her statement; she didn't do it in what you would say dying declaration, but did it in this way: In speaking of the shooting, she said it was so much better that the negro made a mistake in shooting her than it would have been if he had shot Mr. Spicer, because it would be so much better for her to be taken than him. He could take so much better care of the children than she. She said she couldn't live. She said the negro did the shooting. In a general way, she said the negro was named Joe Green; possibly she said just Joe. My recollection is she just spoke of the negro. Of course it was understood that the balance was known. She didn't say she was standing when she was shot; she said she was coming from the washpan shelf. She said Mr. Spicer was right where he said he was in the house by the fire. She just got up and walked to the washpan shelf; left him sitting there and started to walk back, when the gun was fired."

The witness was here again examined by the attorney for the state, and testified as follows:

"Mrs. Spicer did not tell me that she saw Joe Green shoot her."

Being asked by the attorney for the state what Mrs. Spicer said about Joe Green's shooting her, the witness testified as follows:

"It is mighty hard to say; take an event like that, and it is mighty hard to remember remarks passed; but, as I stated before, in her talk, understand her condition was about, all the time, from the moment I got there, I began to impress upon her the importance of being quiet, and I didn't let her talk when I could help it, but constantly she would break out, and I remember that distinctly, and she wept over that condition, and said it would be better for Sam to be left with the children than for him to have been taken. She didn't say she saw anybody shoot her. She said that she didn't see anybody. She said she didn't see who shot her."

The witness was here examined by the attorney for the defendant, and testified as follows:

"She didn't say anything about seeing somebody out there at the well. I asked her positively if she saw anybody, and she said that she didn't."

The defendant's description of the shooting was, in substance, that he was preparing to retire for the night, had stepped out of doors a few minutes before the shooting. He says, among other things:

"I went in there and was just talking to my children like I always did. My wife was about her dishes and victuals while I was out, and she was just making preparations to come in when I went in and set down and pulled off my shoes. When I pulled off my shoes, I went and got some water and washed my feet. I washed my feet in the house, by the fire in the bedroom. The children were in there with us, and my wife was in there, too. After washing, I went and threw the water out."

The witness was asked the following questions, and gave the following answers:

"Q. Where did you throw it out at, Mr. Spicer? A. I went through the dining room is my best recollection, and out the door to the back porch, and threw the water out at the water shelf, and set the pan down, and went on back into the hall and into the bedroom. Yes, sir; my wife's bedroom. Yes, sir; I went through the door that opens into the hall. When I got back in there, my best recollection is, I sat down, and one of the children ran up to me. It was Janie, my little girl. And my wife says to me, 'Sam, did you bring the pan back?' and I said, 'No; I forgot it Nobie; I will go and get it for you if you want me to.' She says, 'No; I will go get it.' Q. When she started out what were you doing? A. Taking my little girl's drawers off, so she could get on the chamber, and go to bed; and about the time I got them off she had gone out to the water shelf and was coming back. I will have to tell you what she told me. You see, I didn't see her. Q. Go ahead now. A.

And she screamed and says, 'Oh, Sam! somebody shot me,' and I jumped up, and my little girls were in front of me, and stayed in front of me, and I could not run around her as fast as I wanted to, for the little girl was in the way, and when I got to her she was over on all fours like, feet on the doorsill, as near as I can recollect, kind of on her knees, and as I came towards her she had dropped over on her left hip, and I run to her, and says, 'What is the matter, Nobie?' and she says, 'Somebody shot me, Sam;' and I says, 'Nobie, have they hurt you bad?' and she says, 'Yes, Sam; they have killed me;' and I got her in my arms this way, and drug--pulled--her just a little, just a least bit, to where her head would nearly strike this partition wall coming between the dining room and the cook room, right besides the door at the end of the hall, going into the cook room, and the dining table stood a little further from us than the stenographer's table there. I do not remember whether she was trying to pull the door to when I got there. Well, as to what next--the best that I can remember--I have tried to think over it that she spoke of going to faint, and I ran to the mantelpiece and grabbed the camphor and pistol, and as I came back I placed the pistol in my pocket, and pulled out the stopper, and run to her and rubbed some camphor on her. Then I supposed about a minute passed. I raised up and put the pistol in one hand and started out the door, and she said, 'Sam, don't go out there; they will shoot you;' but I threw the screen door open and walked on out in the yard, and I heard a noise, and whirled around, and dashed as hard as I could to the front, and by the time I got between the two doors in the hall between the large rooms, I fired. Yes, sir; it looked like a man, and I fired, running as hard as I could."

The record presents many close and difficult questions as to the admissibility and relevancy of evidence. While no entirely new rules of evidence are involved, the application of old rules to new circumstances and conditions is involved. As to some of the questions we are unable to find authorities exactly in point, and can therefore appreciate some of the difficulties which the trial court and counsel have encountered in this case.

Special counsel was employed in the prosecution of the case in the lower court, and, on appeal, in this court. The case has been fully and ably argued by counsel both for the state and for the defense, and their presentation thereof has greatly aided us in our examination of the record.

The state contends that the evidence tends to establish one of three theories: (1) That the defendant used the negro boy, Joe Green, to place the gun and did the shooting himself; (2) that the defendant procured the negro boy, Joe Green, to do the shooting, and defendant then killed Joe Green to suppress his testimony and conceal the crime; (3) a conspiracy between defendant and Joe Green to kill Mrs. Spicer in order to procure the $17,000 of insurance on the life of Mrs. Spicer in favor of the defendant, defendant agreeing to make some division of the proceeds with Joe Green.

The evidence is voluminous. It consists of nearly 300 pages of closely typed matter, The evidence takes a very wide range. It is admitted by the state, and was so charged by the court to the jury, that the evidence to show the defendant's guilt was wholly circumstantial.

There were scores of exceptions and questions reserved as to the admission and the rejection of evidence. All these have been examined, but it is impossible to treat each exception separately. We will, of necessity, have to group the objections and exceptions touching the evidence, and treat each class merely.

On the trial the state sought to prove, and did prove, that the defendant had procured several policies of insurance, in his favor, on the life of his wife; such policies aggregating about $17,000. This fact was admissible as tending to show motive on the part of defendant to take the life of the insured--deceased. Wills on Circum. Ev. pp. 154e, 120, 359g, and authorities cited; Com. v. Clemmer, 190 Pa. 202, 42 A. 675; Com. v. Robinson, 146 Mass. 571, 16 N.E. 452; State v. Rainsbarger, 74 Iowa, 196, 37 N.W. 153; Brandt v. Com., 94 Pa. 290.

The trial court, however, allowed the state too...