Wilson v. State
Decision Date | 12 February 1974 |
Docket Number | 1 Div. 312 |
Citation | 52 Ala.App. 680,296 So.2d 774 |
Parties | Donald WILSON v. STATE. |
Court | Alabama Court of Criminal Appeals |
Wyman O. Gilmore, Grove Hill, and John L. Lawler, Mobile, for appellant.
William J. baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
Murder, second degree; sentence, ten years and one day in the penitentiary.
Appellant's brief has not complied with Rule A 49 Ala.App. XXI.
The State's case rested on circumstantial evidence to the effect that the deceased, Shirley James, did not die from suicide by a rifle shot. The appeallant and deceased, according to one witness, had quarreled shortly before she was shot. Her left eye was 'real black.' The appellant alone was present with her when the ambulance came to carry her to the hospital. She died there.
At the hospital, a witness noticed that both the deceased's eyes were swollen and black and blue.
Nelson Grubbs, assistant State Toxicologist, testified that his post mortem examination indicated that the deceased's left half of her skull was 'depressed prior to the passage of the bullet.' His opinion was either/or, i.e., either the shot or the crushing of the head could have caused death. Grubbs found no powder burns or singed hair on deceased. He gave testimony as to the distance at which the trigger could have been touched by a suicide.
Appellant adduced testimony that the rifle belonged to deceased and that the house (which was his) was locked when he sought to enter. He would account for her skull condition because her body had been dropped when he and the ambulance attendant were moving her to a stretcher.
We consider that there was sufficient evidence to let the case go to the jury. Hence, refusing the affirmative charge was not error.
After the jury was selected and sworn the Record (p. 15) shows the following:
'JUDGE LINDSEY: State your case to the jury.
'During Mr. Kimbrough's statement of his case Mr. Gilmore objected as follows:
An objection in proper form would have been subject to being sustained. An indictment is not evidence and it is extraneous to the trial thereof to refer to how and by whom the indictment came into being. The office of the opening statement is to explain what the party making it expects the Evidence to show. Knowles v. State, 44 Ala.App. 163, 204 So.2d 506.
It is proper for the indictment to go to the jury room with the jury. 23A C.J.S. Criminal Law § 1369.
In Sanders v. State, 131 Ala. 1, 31 So. 564, McClellan, C.J., said, 'It was necessary that the indictment should be taken by the jury on their retirement * * *.' 1 Apparently, it is adjured in such cases that, upon request, the trial judge direct the jury that the true bill is not evidence. Little v. United States, 10 Cir., 73 F.2d 861. 2 The trial judge here so directed the jury.
Endorsed on the instant indictment (R. 2) was the clerk's legend:
'Presented in Open Court to the Presiding Judge by the Foreman of the Grand Jury in the presence of 17 other Grand Jurors, this 27 day of August, 1971.'
At the close of the oral charge the following appears without any exception being taken by the defendant:
In Eady v. State, 284 Ala. 327, 224 So.2d 876 our Supreme Court laid down a requirement of protection of the record. In the instant case the point claimed erroneous was objected to only in general form without specification of grounds.
The other matters, i.e., letting the indictment go to the jury, and the endorsement thereon of the verdict comport with the accepted practice in Alabama courts. No motion to shield or paste over the legend endorsed of the presentment was made. Whether this should have been granted had it been made We need not here decide. See Eady, supra.
We consider no error is before us on this point.
In his brief appellant's counsel contends in part as follows:
'The Appellant's attorney objected to witness Grubbs being allowed to ramble in and out of most specialities known to men but each time was overruled by the trial court.
To this contention the Attorney General counters with:
We consider there is no error in this regard. Ordinarily a witness's testimony becomes legal if received without objection. Jenkins, supra, represented an exception, i.e., lack of probable cause to support a warrantless search. In this latter situation the State was up against a prima facie...
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