Wesley v. State

• Decision Date: 14 May 1946
• Docket Number: 4 Div. 918.
• Citation: 26 So.2d 413,32 Ala.App. 383
• Parties: WESLEY v. STATE.
• Court: Alabama Court of Appeals

26 So.2d 413

32 Ala.App. 383

WESLEY v. STATE.

4 Div. 918.

Alabama Court of Appeals

May 14, 1946

Rehearing Denied June 4, 1946.

O. S. Lewis and C. R. Lewis, both of Dothan for appellant.

Wm N. McQueen, Atty. Gen., and Bernard F. Sykes, Asst. Atty Gen., for the State.

BRICKEN Presiding Judge.

The indictment upon which appellant (defendant) was tried charged him with the offense of manslaughter in the first degree in that he said 'Joe Wesley unlawfully and intentionally, but without malice, killed Willie Godwin by stabbing him with a screw driver, against the peace and dignity of the State of Alabama.'

The trial resulted in the conviction of defendant for the offense of manslaughter in the second degree and the punishment fixed by the jury was hard labor for the county for twelve months. He was accordingly sentenced by the court.

It appears, without substantial dispute, from the record in this case that on Tuesday the 16th day of July, 1943, the said Joe Wesley while traveling along a public highway in the Southern part of Houston County, Alabama, in an automobile with some of his kin who, with him, were returning home from church, came upon Rass Godwin, and Addie Mae Godwin, who was also the sister of the said Joe Wesley, and who were fighting there by the side of the highway.

The evidence offered by the State tended to show that Rass Godwin, Willie Godwin, Jessie Pearl Godwin, Willie's wife, Wayman Godwin and Willie D. Godwin were all riding in Rass Godwin's automobile, and that Addie Mae Godwin, Rass Godwin's wife, stopped this car and had some words with Rass Godwin her husband; Rass Godwin got out of the car and Addie Mae struck him, and that thereupon Rass and his wife, Addie Mae, had a fight there on the side of the road. When the automobile in which Joe Wesley was riding reached the scene of the difficulty practically all of the occupants of that car which was being driven by Thelma Wesley, got out of that car and joined in the fight with the Godwins, who were traveling in Rass Godwin's automobile. One of the State's witnesses testified that during the fight, Joe Wesley struck, or stabbed, Willie Godwin in the neck with a screw driver.

Joe Wesley testified in his own behalf and, according to his testimony, the only part he played in the free for all fight was to separate Willie Godwin and Addie Mae Godwin, and when he did this, he carried Addie Mae Godwin, his sister, back to the Wesley car and had nothing more to do with the fight. He denied that he struck Willie Godwin with a screw driver, or any other weapon, and denied that he had anything to do either with the commencement, the continuation or ending of the fight. He was corroborated by other witnesses who testified for the defendant.

The undisputed evidence tends to show that a number of the participants in the difficulty were wounded with bottles, knives, or other weapons.

Under all of the testimony it was for the jury to say whether or not Joe Wesley participated in the fight and as to whether or not he stabbed Willie Godwin with a screw driver.

It was further shown by the testimony in its entirety and without material dispute that after the fight Willie Godwin was carried to Dothan, Alabama, to Doctor Andress who treated and dressed his wound. This was on the day of the difficulty. On the Sunday following Willie Godwin was again taken to Dr. Andress, who again treated and dressed the wound. On Monday following Willie Godwin was carried to the office of Dr. Burdeshaw, who took off Dr. Andress' last dressing and put a new dressing thereon. He then returned to his home and that night began to complain of acute indigestion, or a pain in his stomach. One of his white neighbors, Mr. J. B. Joiner, who testified that he remembered in July (Friday, July 16th, 1943), when Willie Godwin is said to have been stabbed, and that after reaching Willie Godwin's home and after being informed by Jessie Pearl Godwin, the wife of Willie Godwin, that Willie had another attack of acute indigestion, that he told her that Willie needed a dose of salts, and that hot salts was good for him if he had acute indigestion, and that he had to return to the State line, some distance away, to get the salts and that he carried it back to Willie's home, and that Willie's wife gave it to him, and that he also gave her some powders--'Bismuth or something powders, indigestion powders,' which were also given to Willie Godwin, the deceased, by his wife. This was on Monday night and Willie Godwin died about 7 o'clock the following Tuesday morning, July 20, 1943.

Under the indictment against Joe Wesley, the defendant, the burden was on the State to prove beyond a reasonable doubt that Joe Wesley killed Willie Godwin by stabbing him with a screw driver. That is, the burden was on the State to prove not only that Joe Wesley stabbed Willie Godwin with a screw driver, but also that Willie Godwin died as the result of being stabbed by Joe Wesley with a screw driver.

The State offered Mr. J. M. Rash, an Assistant State Toxicologist, as a witness. During his direct examination, Mr. Rash, was asked if he had seen and observed wounds on bodies during the time he had been serving as Assistant Toxicologist and he said 'Yes.' Apparently the State was attempting to qualify the witness as an expert. It will be noted that the witness did not testify as to the examination he had made, and with the exception of knife wounds, he did not testify what instrument made the wounds which he did examine, or that he had ever seen a wound made upon the body of a human being with a screw driver. In the case of Clemons v. State, 167 Ala. 20, 52 So. 467, 471, our Supreme Court said: 'The mere fact that he had seen blood flow from two dead bodies, on prior occasions, did not render him competent as an expert on this subject. To authorize a witness to give an opinion as an expert, it must appear that, by study, practice, experience or observation as to the particular subject, he had acquired a knowledge beyond that of ordinary witnesses; otherwise, he would not be an expert, and his knowledge, skill, or experience is not considered sufficient to inform the court or to guide the jury in reaching a correct conclusion upon the subject of inquiry. * * * Evidence like this was condemned by this court in the case of Rash v. State, 61 Ala. 89, in which case it was held that one who had been in the late war, and had observed the range of balls, in many gunshot wounds, but who was not a physician, a surgeon, or an expert, was not qualified to testify as to the range of the balls in some of the wounds which he had observed, but that a physician or surgeon, with experience as to such wounds was an expert, and could give his opinion as to how the wounds were inflicted upon deceased, in a homicide trial.'

Under the rule as above quoted it does not appear that the witness Rash, qualified as an expert to the extent that he was capable of giving an opinion as to the weapon or instrument with which the wound on the neck of the deceased was inflicted.

While this subject was being discussed and argued before the trial court that court said: 'If he qualifies as an expert with reference to the things about which he has testified he would be entitled to give an opinion if other conditions were such that would justify an opinion. If he does not show that the wound was in the same condition or had not been tampered with from the time it was inflicted until this happened, then, of course, it all goes out as I stated...