Williams v. State

• Decision Date: 18 May 1948
• Docket Number: 6 Div. 529.
• Citation: 39 So.2d 29,34 Ala.App. 253
• Parties: WILLIAMS v. STATE.
• Court: Alabama Court of Appeals

39 So.2d 29

34 Ala.App. 253

WILLIAMS v. STATE.

6 Div. 529.

Alabama Court of Appeals

May 18, 1948

Rehearing Denied June 1, 1948.

After Remandment Jan. 11, 1949.

Rehearing Denied Feb. 1, 1949. [Copyrighted Material Omitted]

Jas. A. McCollum, of Tuscaloosa, for appellant.

A. A Carmichael, Atty. Gen., and L. E. Barton, Asst. Atty. Gen for the State.

The following charges were refused to defendant:

lg. The court charges the jury that proof of contradictory statements or declarations on a material point made by the witness Jordan Hankins may be sufficient to raise a reasonable doubt in the minds of the jury as to the truth of the testimony of the witness Jordan Hankins.

lo. I charge you, gentlemen of the jury, that if you believe from the evidence that Paul Quimby killed John Plummer to stop or prevent him from raping his mother, Annie Williams, you should find the defendant not guilty.

CARR Judge.

This is the second appeal of this cause. Williams v. State, 32 Ala.App. 597, 28 So.2d 731. After remandment and on retrial in the court below, the appellant was convicted of manslaughter in the first degree.

From the aspect of the State's presentment, the evidence on the two trials does not vary in the main.

The court, in his oral instructions, limited the degrees of homicide to murder in the second degree and manslaughter in the first degree. The appellant requested in writing that the court charge that manslaughter in the second degree was also included. This tender was refused.

'Manslaughter, by voluntarily depriving a human being of life, is manslaughter in the first degree; and manslaughter committed under any other circumstances is manslaughter in the second degree.' Title 14, Sec. 320, Code 1940.

It is, of course, axiomatic that an indictment for murder in statutory form includes the lesser offense of manslaughter in the second degree. It follows that a charge to this effect should have been given, unless it can be determined that the evidence was not sufficiently efficacious to warrant the instruction.

'It matters not how slight the tendency of evidence may be towards establishing any material fact involved, the court cannot exclude it from the jury. Its weight is for their determination.' Morris v. State, Ala.Sup., 39 So. 608, 611. See also, Burns v. State, 229 Ala. 68, 155 So. 561; Carter v. State, 31 Ala.App. 526, 19 So.2d 361.

The authorities are committed to the doctrine 'that it is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.' Pierson v. State, 99 Ala. 148, 13 So. 550, 552.

The general rule applicable to the factual issues in the case at bar is stated in 41 C.J.S., Homicide, § 389, page 202:

'Where there were no eyewitnesses to the killing and the evidence is purely circumstantial, the court should instruct the jury as to the different grades of homicide, unless it is evident from the whole proof that accused is either guilty of murder or innocent; but the court need instruct only as to such degrees as are warranted by the proof, where there are eye witnesses to the homicide, and there is no doubt as to how it was committed.'

By reference to the delineation of the evidence, which is set out with care and particularity in the former opinion, supra, it will be observed that apparently the deceased came to his death by wounds inflicted with some blunt instrument. The manner of this infliction and the facts and conditions incident thereto are left solely and entirely for determination by circumstantial evidence. Whether or not this proof was such as to constitute murder or the lesser offenses of manslaughter in the first or second degree should have been submitted to the jury under appropriate instructions by the court.

On the former appeal we held that it was error to omit the submission of the doctrine of manslaughter in the first degree. We did not specifically declare on the question of instant concern. It was not presented. Our views there stated cannot be taken to be out of harmony with the conclusions we now express. Rather, the contrary appears.

We now hold that it was error to preclude the instruction indicated. Duncan v. State, 30 Ala.App. 356, 6 So.2d 450; Dennis v. State, 112 Ala. 64, 20 So. 925; Carter v. State, supra.

Urgent and insistent complaint is registered in brief of counsel to the effect that the conduct and attitude of the trial judge throughout the progress of the proceedings were unfair to the accused, and by reason of this the substantial and unprejudiced rights of the defendant were seriously impaired. This claim relates to several incidents when the judge made voluntary comments with reference to the pertinency and probative value of testimony, and his apparent impatience at times with appellant's attorney.

We are impelled to the view that there is some merit in this position. However, since a reversal must be ordered, we will not laden this opinion with a treatment of this matter; neither will we declare a definite decision thereon.

In contemplation of the possibility of another trial, we think it fitting and appropriate to make some response to the insistence. This we will do by quoting a timely annunciation which the presiding judge of this court made in Dennison v. State, 17 Ala.App. 674, 88 So. 211, 213:

'The trial judge, as a natural consequence of this position and the many duties devolving upon him, is necessarily vested with much discretion in the conduct of the trial of causes, and, unless it clearly appears that there has been an abuse of this discretion, appellate courts will not interfere to control such discretion, but will presume that one occupying so important a position as that of circuit judge will accord to all litigants in his court the fair and impartial trial provided for in the Constitution of this state. That a trial judge wields a great influence upon the jury cannot be questioned, for it is their duty to follow his instructions as to the law. So, whenever he expresses an opinion on any disputed fact, or of the character of a witness, or compliments one attorney at the expense of another, or uses language which tends to bring an attorney into contempt before the jury, or uses any language or makes any intimation which tends to prejudice them, he commits an error of law, which would, of necessity, effect a reversal of the judgment and a remandment of the cause.'

See also Holland v. State, 24 Ala.App. 199, 132 So. 601; Griffin v. State, 90 Ala. 596, 8 So. 670; Williams v. State, 18 Ala.App. 573, 93 So. 284; Moulton v. State, 199 Ala. 411, 74 So. 454.

While presenting his defense in chief the defendant introduced a number of witnesses who deposed that the accused had a good general character and a good reputation for peace and quiet. The State countered by introducing equally as large a number of persons who stated that appellant's character was bad. When the prosecution rested, appellant's counsel made known to the court that he had twelve other character witnesses, naming them, whom he desired to introduce. The court denied him the privilege.

Our courts are committed to the doctrine that a trial judge cannot limit defendant's character witnesses in attendance to any particular number. There seems to be an exception to the rule if the factual issue as to character of the defendant is not in dispute, and in some cases Supreme Court Rule 45 has been applied. Willis v. State, 20 Ala.App. 572, 104 So. 141; Leverett v. State, 18 Ala.App. 578, 93 So. 347; Latner et al. v. State, 20 Ala.App. 180, 101 So. 522, 523; Norris v. State, 16 Ala.App. 126, 75 So. 718.

Our approach here must be made from another point of view. The orderly and accepted procedure required that the appellant continue to a completion of this line of evidence before he rested. The court's declination of the tender about which complaint is made came when the offer was at an irregular and inappropriate place in the course of the trial. The question of whether or not the witnesses would be permitted to testify out of order addressed itself to the sound discretion of the court. We will not hold that there was a prejudicial abuse. Sansom v. Covington County Bank, 17 Ala.App. 556, 87 So. 406; Northern Alabama R. Co. v. Mansell, 138 Ala. 548, 36 So. 459.

There are numerous other questions presented by the record to which we have not responded. The nature of these is such that they will not likely recur in exact form in the event of another trial.

For error indicated, it is ordered that the judgment at nisi prius be reversed and the cause remanded.

Reversed and remanded.

After Remandment

This appeal is again in this court after remandment by the Supreme Court.

In our original opinion we omitted to respond to a number of questions which the record presented. We felt that a reversal of the judgment obviated this necessity.

We expressed the view that there was some merit in the insistence of appellant's counsel to the effect that the conduct and attitude of the judge, in many instances, during the progress of the trial resulted in injury to the accused in his right to a fair and impartial trial.

We will not laden this opinion with a detailed recitation of each of the incidents against which this claim is registered. We will excerpt some which we consider most pertinent and pronounced. For the sake of accuracy and convenience we will copy them as they appear in the record and make such comment as we deem necessary for illustrative setting.

While a State's witness was being cross examined:

'Q. Had the Winfield officers been there...