Walker v. State

• Decision Date: 02 December 1892
• Parties: WALKER v. STATE.
• Court: Alabama Supreme Court

12 So. 83

97 Ala. 85

WALKER v. STATE.

Supreme Court of Alabama

December 2, 1892

Appeal from circuit court, Blount county; John B. Tally, Judge.

William Walker was convicted of burglary, any appeals. Affirmed.

The indictment reads as follows: "The grand jury of said county charge that, before the finding of this indictment William Walker, with intent to steal, broke into and entered the store of Daniel W. Morris and Rose T. Morris, in which goods, merchandise, or clothing, things of value, were kept for sale or deposit, and did feloniously take and carry away from said store one shirt of the value of one dollar, and one coat of the value of ten dollars, and one vest of the value of three dollars, and one pair of pants of the value of five dollars, and five dollars in currency of the United States the personal property of Daniel W. Morris and Rose T. Morris against the peace and dignity of the state of Alabama." The defendant demurred to the indictment on the ground that there was a misjoinder of counts therein, in that two different offenses were joined in the same count,-one for burglary, and one for larceny. This demurrer was overruled by the court, and the defendant duly excepted. The evidence for the state tended to show that the store of D. W. & R. T Morris was broken into by the door being prized open, money was taken therefrom, and a suit of clothes and a shirt were also taken therefrom. The evidence for the state further tended to show that the shirt taken from the store was found on the defendant, and identified by the owners of the store that they also found an old button near the cash drawer in the store which was identified as the button of the defendant. The old vest which was worn by the defendant was also found on the roadside some distance from the store; and this vest was identified as the one which defendant had worn on the day of the night that the store was alleged to have been burglarized. Upon the state's offering to introduce as a witness one Abe Muller, the defendant objected to the said Muller testifying in the case "because he was non compos mentis and foolish." In support of this objection the defendant introduced a practicing physician, who testified that he had known Muller for about 18 months, had employed him to work for him, and had examined him, and that "in his opinion the said Abe Muller was demented and weak-minded, subject to fits and foolish spells; that his nervous system and mind were badly deranged; *** and in his opinion that the said Abe Muller had not sufficient mental capacity to testify as a witness." On cross-examination this witness then testified that "probably Abe Muller's memory is not impaired, but in my opinion it is. Some insane people have memory." On voir dire, Abe Muller testified as follows: "God made me. I am going to heaven when I die,-trying to go there. If I tell a lot of lies I will go to hell. I know I will be punished in hell if I do wrong. I am about 27 or 28 years old." On cross-examination he said an accident happened to him while lifting a bale of cotton, the cotton falling on his back and shoulders. He also testified on cross-examination: "I can remember anything; got a good mind around me all the time; could tell what I know about this case if I could get a chance." After the evidence in this behalf the court overruled the objections to said Muller testifying, to which ruling of the court the defendant excepted. He testified that the defendant broke into the store of Morris Bros., and took therefrom the goods alleged to have been stolen; that he was in the same room with the defendant on the night of the burglary, when the defendant, cursing him, told him to come with him to the store, and watch while he, the defendant broke down the door, and took from the store the goods stolen. Upon the identification of the old vest of the defendant as belonging to him, and upon Morris Bros. testifying that the shirt found on the defendant, and alleged...