Underwood v. State

• Decision Date: 14 December 1939
• Docket Number: 4 Div. 65.
• Citation: 193 So. 155,239 Ala. 29
• Parties: UNDERWOOD v. STATE.
• Court: Alabama Supreme Court

193 So. 155

239 Ala. 29

UNDERWOOD v. STATE.

4 Div. 65.

Supreme Court of Alabama

December 14, 1939

Rehearing Denied Jan. 25, 1940.

Appeal from Circuit Court, Pike County; W. L. Parks, Judge.

Sam Underwood was convicted of murder in the first degree, and he appeals.

Affirmed.

Where witness in murder prosecution was not an expert, witness without the statement of facts, could not properly answer question calling for witness' opinion, from his experience and observation of defendant and knowing defendant all his lifetime, respecting defendant's present mental condition.

In his oral charge the Court stated to the jury that: "The burden is on the State to prove the defendant's guilt and the State here introduces certain circumstances and contends that those circumstances bear on the question of the guilt of the defendant at the bar, Sam Underwood, and moreover they claim that after proof of the presumably unlawful killing of Mr. Braddy that the defendant made a confession that he did it. * * * So that Sam Underwood would be independently guilty if his confession was true and voluntarily made, and if it satisfies you, together with all the other evidence in the case of his guilt beyond a reasonable doubt. In connection with that also is the fact of the defendant's confession being accompanied with some other facts which the State contends is material evidence and that is his possession of the deceased's pistol and his direction as to where they would find it, and a knife of certain dimensions which was offered in evidence here and the brick. That is about the State's case and what they contend."

The State's witness Tommie Flowers testified, over objection that he, with others, was walking through the mill yard, through which the public road passes, and saw deceased's body lying on the ground, described the situation of the body and the location. On cross-examination he was asked: "Well, what was your purpose in going through there on that special night?" The bill of exceptions thereupon recites:

"State objected to this question. The objection was sustained, and defendant duly and legally reserved an exception.

"(The witness answered: 'We was just walking through there').

"Q. Where was your wife that night?

"State objected to this question. The objection was sustained, and defendant duly and legally reserved an exception.

"(The witness answered: 'She was at home')."

State's witness Maude Bradberry testified that she remembered the night Braddy was killed down there at Dickert's mill; that she was at home; that it was on a Saturday night; that she did not see Sam Underwood anywhere that night; that she did not go down there to the mill with Sam Underwood, Freeman Wood and Ager Key and Arter Bradberry; that she did not see either of them that night. On cross-examination the witness testified that she did not leave home that night; that her friend came to see her and they stayed at home that afternoon and night; that she did not go anywhere with Freeman Wood. She was asked by defendant: "This man that came to see you that afternoon, he worked in the C. C. Camp, didn't he?" The State objected to the question, and the bill of exceptions recites: "The objection was sustained, and defendant duly and legally reserved an exception and assigns the following grounds: (The witness answered 'Yes, sir.') * * *."

Witnesses Arter Bradberry, Ager Key and Freeman Wood testified, in substance, that they did not see Sam Underwood at all on the night Braddy was killed. State's witnesses testified to statements made by defendant after his capture by officers; that defendant then stated that he, Arter Bradberry, Freeman Wood and Ager Key were present when Braddy was killed, and that Maude Bradberry was close by; that the parties first named were involved in the killing with defendant.

It appears from the bill of exceptions that on the examination of witness Caroline Grubbs defendant propounded certain questions, to which the State interposed objections; that objections were sustained, but that the witness made answer to the questions.

Defendant assigns as error the ruling of the court sustaining objection by the State to question propounded by defendant to his witness Dr. Cowles seeking to elicit the opinion of the witness whether or not defendant was insane at the time of the killing.

The bill of exceptions shows that the solicitor, in argument to the jury, stated in substance: "The reason we spent so much time yesterday in empaneling the jury was because this case depended largely on circumstantial evidence, and that is the reason why they were asked if they would inflict the death penalty on the defendant." Objection by defendant to this argument was overruled. Further in argument the solicitor stated: "The only testimony that connected those other negroes with this murder came from the mouth of Sam Underwood alone." Objection to this argument was overruled. The solicitor further stated in argument: "I will bet you that the sheriff of Pike County spent not less than $500.00 of his own money in the investigation of this case."

Defendant objected to this argument, and the court stated: "You charged the solicitor was responsible for it. Overruled."

John C. Walters and T. L. Borum, both of Troy, for appellant.

Thos. S. Lawson, Atty. Gen., for the State.

THOMAS Justice.

The first exception challenged the action of the trial court as to a portion of the oral charge to the effect that the defendant, Sam Underwood, had possession of the deceased's pistol. When the record evidence is looked to, this fact was established. When the context of the oral charge is understood, the court was warranted in so instructing the jury.

The physician described the wounds as "stabs or cuts,"--knife signs on deceased's face and neck, a large hole made with a blunt instrument in his skull.

The jury may have inferred that the injuries on the victim's head were inflicted with a knife and brick in evidence: the human skin, hair or blood on the brick was to that effect.

The toxicologist, as a witness, examining the brick found at the body, testified that: "I examined the brick. I found blood, hair and skin, minute quantities on that brick. Yes, sir, I found blood, hair and skin in minute quantities. I examined it with chemicals and with the microscope. There were 17 small, short hairs of a slightly brownish color, with blood mixed intimately with it. The skin particles were also in the same clots, firmly attached to the surface of the brick. They were human hair from the eyebrow, or eye lash. Yes, sir, they were human hair from the eyebrow, or the eyelash. From my examination, I could not tell whether it was human blood, or not. * * * It requires approximately a drop of blood that can be recovered in a pure state, without impurities. Yes, sir, I have to have at least a drop of blood to ascertain whether it was human blood or not. There was not as much as a drop of blood on that brick."

There was no error in overruling defendant's motion to exclude the evidence as to the brick in question. When related to the physical condition of the body as detailed by the doctor, this evidence was material, connecting the assailant with the use of the brick in the commission of the crime, making wounds on deceased's head and brow.

The witness Leverett testified: "I went to his house sometime after July 24th, 1938. Ben Reeves and Burr and myself went. I found something there. I found a pistol. I found a hammer and a screwdriver. I found it fifteen yards from Sam Underwood's house. In a northeast direction. That is towards the back of the house. The pistol was buried. It was buried in a croker sack, wrapped up in a croker sack, stuck down in a hole. The hole was about four inches deep. That is the pistol that I found. That is the one that was buried in the sack. * * *." The evidence showed that the pistol was the property of deceased, and that he carried it to his work as night-watchman, where he was killed.

As a witness, the sheriff testified on this question, as follows "I asked him about the killing of Giff Braddy and he said he was in it and he said he helped kill him and then I questioned him as to where the things were that Mr. Braddy had lost, especially the pistol and he told me that they were hid about ten or fifteen steps back of his house in a corn field right straight back of his house and that they were buried in a shallow place in this croker sack; that there was a hammer and screwdriver with the pistol and that he had been working on the pistol and had that hammer and screwdriver down there to fix it, and that it was the pistol that he took off of Giff Braddy. He told me he took it off of him the night Braddy was killed. Sam said that Freeman Wood, Alta Bradberry and Ager Key, and that there was a woman with them, but that the woman didn't have anything to do with the actual killing. The woman went under two names, Maude Hardwick and Maude Bradberry. Well, he said they were all with...