Vaughn v. State

• Decision Date: 30 June 1938
• Docket Number: 6 Div. 62.
• Citation: 236 Ala. 442,183 So. 428
• Parties: VAUGHN v. STATE.
• Court: Alabama Supreme Court

183 So. 428

236 Ala. 442

VAUGHN v. STATE.

6 Div. 62.

Supreme Court of Alabama

June 30, 1938

Rehearing Denied Oct. 6, 1938.

Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler Judge.

Connie Vaughn was convicted of murder in the first degree, and he appeals.

Affirmed.

Kenneth Perrine, of Birmingham, for appellant.

A. A Carmichael, Atty. Gen., and Jack Crenshaw, Asst. Atty. Gen for the State.

GARDNER Justice.

The appeal is from a conviction of murder in the first degree, with infliction of the death penalty.

The indictment contains two counts, each charging defendant with the killing of Annie Mae Adkins; the first alleging that she was killed by striking her with a blunt instrument, "a more particular description of which is to the grand jury otherwise unknown"; the second, "by means which is to the grand jury unknown."

The plea in abatement filed by defendant was rested upon the theory that the Act of October 7, 1932 (General Acts 1932, Extra Session, page 89), concerning the drawing of juries for a county with the population of Jefferson County, was unconstitutional and void. But this Act was expressly held valid in Green v. State, 233 Ala. 349, 171 So. 643; and that question needs no further elaboration.

The demurrer to this plea was properly sustained. The same question was presented by defendant's written objection to being placed on trial, which was properly overruled.

His motion to quash the venire was based upon the alleged invalidity of the Act of September 13, 1935 (General Acts 1935, page 1010), concerning the mode of selecting juries applicable to said county of Jefferson. This Act has likewise been held entirely valid, and this motion was properly overruled. Dixon v. State, 232 Ala. 150, 167 So. 349, denying certiorari in 27 Ala.App. 64, 167 So. 340.

The evidence for the State tended to show a conspiracy entered into between defendant and one McDaniel for the commission of this crime. McDaniel was also indicted and testified for the State, to the effect that he was with defendant during the night of September 5th, when deceased was in defendant's car, which was driven to a lake some few miles from Birmingham, where defendant shot the deceased and with his (McDaniel's) help, her body was wrapped with wire, weighted with rocks, and thrown into the lake.

The State offered proof of threats made by defendant to get deceased out of the way for the reason she had testified against him in a grand larceny case, and McDaniel testified that when defendant shot deceased he remarked, "she would never swear a lie on anybody else." The State's evidence tended to trace defendant's movements from the early part of the night of September 5th to the early morning hour of Sunday, the 6th. One Mabel McCutchen testified she was with McDaniel, defendant and deceased, in defendant's car, on the night of the 5th, and she relates the different places visited, the last being Greenwood's dance hall where she last saw Annie Mae Adkins about two o'clock in the morning leaving Greenwood's place with McDaniel pulling her by the arm. All four were drinking that evening. Her testimony also tends to corroborate McDaniel's testimony, that defendant earlier in the evening of September 5th called deceased at her mother's home and wanted to make a date with her. But further details may be well omitted. Suffice it to say there was much strong corroborative proof of McDaniel's testimony, and, indeed, there is no insistence that the corroboration was insufficient.

Defendant denied his guilt, and offered proof tending to establish an alibi.

On Wednesday following the commission of the crime, the body of deceased was seen floating on the surface of the lake, and investigation immediately begun.

The record discloses that the jury was "'sworn according to law," and suffices in this respect (Gardner v. State, 48 Ala. 263); and it also appears the witnesses were likewise duly sworn. Section 7655, Code of 1923. If the proper oath be administered, we know of no rule which forbids the swearing of a number of witnesses at one and the same time. This is commonly done, and numerous objections interposed upon a contrary theory were without merit.

Because of the fact that deceased was married to one McCutchen, and no divorce yet secured when she married Adkins, it is insisted the latter marriage was void, and her name not changed thereby (citing McCaig v. State, 16 Ala.App. 581, 80 So. 155; McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917; Hines v. Hines, 203 Ala. 633, 84 So. 712), and that as a consequence there was a fatal variance, citing Wells v. State, 187 Ala. 1, 65 So. 950; Parks v. State, 21 Ala.App. 177, 106 So. 218, 219; Cooper v. State, 26 Ala.App. 326, 159 So. 370; Painter v. State, 24 Ala.App. 426, 136 So. 277; Campbell v. State, 18 Ala.App. 219, 90 So. 43.

But we are here concerned only collaterally with the name of the deceased, where the matter is not so important as where is involved the name of a defendant. Jones v. State, 181 Ala. 63, 61 So. 434. The purpose of the rule is for identification and notice to defendant, and if those purposes are met no substantial injury to defendant results. True, in the instant case, from a strict legal standpoint, the name of deceased may not, by the marriage, have been changed to Adkins. But the rule must have a practical aim, as indicated, and when the facts are considered, it seems no fatal variance is made to appear. This for the reason that following the marriage deceased and Adkins, at the time of her death, had been living together as man and wife, and so recognized by her friends and acquaintances. And we think it clearly appears that she was then generally so known as Annie Mae Adkins in the community. Under such circumstances, the point of variance is not well taken, as was, we think, correctly held by the Court of Appeals in Montgomery v. State, 17 Ala.App. 469, 86 So. 132.

As previously observed the indictment in count 2 alleged that the killing was by means unknown to the grand jury, and count 1 that it was by striking her with a blunt instrument, a more particular description of which is unknown to the grand jury.

Defendant insists the proof by the accomplice, McDaniel, was that death was produced by pistol shot, and of consequence there is fatal variance as to the means by which deceased met her death, with citation of Huckabee v. State, 159 Ala. 45, 48 So. 796; Terry v. State, 118 Ala. 79, 23 So. 776; Smith v. State, 142 Ala. 14, 39 So. 329; 30 Corpus Juris 135. This point also is without merit.

The coroner testified that the head of deceased was crushed and the skull fractured, and investigator Parrish at first thought the wound in her back was a stab wound, but reached the conclusion it was a pistol shot wound.

There is nothing in the record to indicate that McDaniel went before the grand jury or that the grand jury had any information as to what his evidence would be. There is, therefore, nothing here to controvert the averment of the indictment that the deceased met her death by means to the grand jury otherwise unknown. The following authorities are, under the circumstances, conclusive against defendant's insistence. Terry v. State, 118 Ala. 79, 23 So. 776; Eatman v. State, 139 Ala. 67, 36 So. 16; 30 Corpus Juris 137.

Some few questions are presented upon the merits. Defendant argues the use of the photograph of deceased, properly identified, was error prejudicial, and inadmissible as immaterial to any issue in the case, citing Brown v. State, 229 Ala. 58, 155 So. 358. If the photograph was wholly immaterial, and its introduction was merely to arouse sympathy and worked prejudicially to defendant's interest, then the case of Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389, would have field for operation. But such is not the situation here presented. The body of deceased was in "a very bad state of decomposition", and "the frontal part of the entire head was crushed, * * * open wounds around her cheeks and her lips were swollen and lacerated." The photograph, not here produced, had a legitimate place as a matter of identification, and it was also referred to by witness McDaniel for identification and witness Parker, who had never known deceased, identified her from the photograph as the woman he saw at Greenwood's on the fatal night. The objection to the introduction of the photograph was properly overruled.

Defendant also argues that an attorney is an officer of the court, and entitled to respectful treatment (Dennison v. State, 17 Ala.App. 674, 88 So. 211), which the trial judge did not accord him, and permitted the solicitor to make prejudicial arguments (Pointer v. State, 24 Ala.App. 23, 129 So. 787), and that partiality was displayed by the trial judge.

Time will not permit a detail review of all the matters of which complaint is made. But the record has been carefully read and each instance studied with care. While defendant's counsel pursued dilatory tactics, at the outset, which, of course, was his legal right, yet the persistence with which many matters of little consequence were presented and urged was well calculated to try...