Wilson v. State

• Citation: 11 So.2d 563,31 Ala.App. 21
• Decision Date: 15 December 1942
• Docket Number: 4 Div. 683.
• Parties: WILSON v. STATE.
• Court: Alabama Court of Appeals

11 So.2d 563

31 Ala.App. 21

WILSON v. STATE.

4 Div. 683.

Alabama Court of Appeals

December 15, 1942

Rehearing Denied Jan. 12, 1943.

Appeal from Circuit Court, Pike County; C.C. Brannen, Judge. [Copyrighted Material Omitted]

The following requested charge was refused to defendant: "If the guilt of the defendant depends upon the testimony of the State witness, Benton, and you have a reasonable doubt of the truthfulness of this witness' testimony, then you should find the defendant not guilty."

John C. Walters, of Troy, for appellant.

Wm N. McQueen, Atty. Gen., and L.L. Mooneyham, Asst. Atty. Gen for the State.

SIMPSON, Judge.

Pickens Wilson killed Louis Fryer by shooting him with a pistol. On an indictment for murder in the first degree, he was convicted of murder in the second degree, and appeals.

The transaction occurred between midnight and 2 o'clock a.m May 7, 1940, in the Colonial Inn, a roadhouse operated by appellant, Wilson. The case has just been presented and submitted to us for decision.

Deceased, as shown by evidence of the State, was shot four times, one bullet taking effect in his chest and ranging rearward and the other three entering the region of his back and emerging in various places in the front of his body.

The evidence of the State supported the charge of a most causeless murder, whereas that of the defendant tended to corroborate his claim of self-defense. Innocence or guilt and the degree were, under the facts, exclusively for the decision of the jury.

At the beginning of the trial, the defendant sought a continuance pending the outcome of a mandamus proceeding then in the Supreme Court, wherein he was seeking to require the jury commission to place additional qualified jurors on the jury roll and in the jury box for use in selecting his jury in the present case. The Supreme Court denied his petition (Wilson v. Brown, 241 Ala. 178, 1 So.2d 914), so, pretermitting other discussion, it now affirmatively appears that no prejudice resulted to the defendant in the overruling of the application for a continuance on this ground.

It is next insisted that the court erred in refusing to grant defendant a continuance because of the absence of a witness, not subpoenaed due to his service in the Army and removal from the State. It is axiomatic that motions for a continuance are vested within the discretion of the trial court. Hawkins v. State, 29 Ala.App. 221, 195 So. 762; 6 Ala.Dig., Criminal Law, k 586. And contrary action thereon will not be revised upon review in the absence of a showing of gross abuse of that discretion. Chiles v. State, 26 Ala.App. 358, 159 So. 700. Here, the record affirms that the court committed no abuse of discretion in denying the motion for a continuance. The absent witness left the State, November, 1940. The trial occurred in May, 1941. From aught appearing, his depositions could have been taken in the interim, and, as remarked by the trial court, "ordinary prudence would have dictated that you (the defendant) take his evidence."

C.D. Brooks, of the State Toxicological Department, had been so employed for three years, during which time and before he had had experience in observing bullet wounds on the human body to determine entrance and exit wounds respectively. He had made an extensive study of the question, particularly during this three-year period, and had examined and observed bullet wounds on some twenty or twenty-five persons. We think he was shown to be sufficiently qualified to give his opinion as to the entrance and exit wounds on the body of the victim.

The criterion for admission of expert testimony is that the witness, by study, practice, experience or observation as to the particular subject, should have acquired a knowledge beyond that of ordinary witnesses. 6 Ala.Dig., Criminal Law, k478. This he appears to have done.

And whether a witness is shown to possess the requisite qualifications is a preliminary question largely within the discretion of the court. Mathis v. State, 15 Ala.App. 245, 248, 73 So. 122; Barlew v. State, 5 Ala.App. 290, 57 So. 601, certiorari denied Ex parte Barlew, 181 Ala. 88, 61 So. 912. Here, as we see it, the court committed no abuse of this discretion.

The witness, Brooks, was also shown to have had extensive experience as a photographer, in taking and developing pictures (photographs). He made some pictures at the funeral parlor the next day of that portion of the deceased's body where the bullet wounds appeared. These photographs tended to corroborate and elucidate his oral testimony regarding the wounds. He testified that these pictures accurately portrayed the wounds on the body. Their admission in evidence was proper.

If the photographs had a reasonable tendency to prove or disprove some material fact in issue, or shed some light upon some material inquiry, they were admissible even though they also might have tended to inflame the minds of the jury. Grissett v. State, 241 Ala. 343, 345, 2 So.2d 399; Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 227, 128 So. 389; Sanders v. State, 202 Ala. 37, 79 So. 375; Lundy v. State, 17 Ala.App. 454, 85 So. 819, certiorari denied 204 Ala. 492, 85 So. 821; Commonwealth v. Sydlosky, 305 Pa. 406(3), 158 A. 154; State v. Holt, 47 Nev. 233, 219 P. 557(4).

The same principle governs the introduction of clothes worn by the deceased when killed. Grissett case, supra.

If such proffered evidence (clothing or photographs) shows the location of the bullet holes, it is held to be relevant "as shedding light upon the character and location of the wound[s] on the body, though it was merely cumulative evidence, and there was no dispute. It was a circumstance, material, if cumulative. The admission of cumulative evidence, even upon a fact not disputed, is not prejudicial error." Weems v. State, 222 Ala. 346, 347, 132 So. 711, 713; Hyche v. State, 22 Ala.App. 176, 113 So. 644, certiorari denied 217 Ala. 114, 114 So. 906; Pierce v. State, 28 Ala.App. 40, 178 So. 248.

Under the rule of the foregoing authorities, then, the photographs were relevant and, even though portraying a gruesome spectacle, were admissible.

Another question is the admissibility of the entire transcript of the testimony of State's witness, Benton, given on preliminary trial. The defendant had offered and was allowed to introduce portions of this testimony to impeach Benton's testimony given at the present trial. The State was then permitted to offer the remainder on rebuttal. Headnote 12 in Lester v. Jacobs, 212 Ala. 614, 103 So. 682, 683, epitomizes the holding of our Supreme Court on this question: "Where defendant, on cross-examination of plaintiff's witness, introduced part of former testimony of such witness without limitation and without declaring its purpose, but apparently in nature of impeachment after due predicate, * * * plaintiff was properly permitted to introduce the whole of such testimony on rebuttal." (Italics supplied.) In observance of this rule, the trial court cannot be placed in error for his action in allowing the introduction of Benton's entire testimony.

Defendant's witness, Green, was properly cross-examined as to his occupation as bearing on his interest and credibility. 70 C.J., p. 811, § 1014; Id., p. 762, § 919; Boyette v. Bradley, 211 Ala. 370, 377, 100 So. 647. Furthermore, his answer, that he operated a rolling store, two filling stations, a grocery store, a dance hall and pool room, could not have possibly worked any prejudice against the defendant. Earnest counsel's contention for error on this point is wholly untenable.

Another question reserved and insisted upon as error relates to the refusal of the trial court to permit the defendant to prove by a certain witness (Stewart) that deceased had the reputation of being of a "quarrelsome nature."

There having been adduced by the defendant some evidence tending to prove self-defense, it was of course competent for the defendant to show that deceased was of known, violent, turbulent, bloodthirsty, revengeful or dangerous character. 11 Ala.Dig., Homicide, k188(3)(5), 163(2).

The rule seems to be that "it is improper to inquire into the general character of the deceased for peace and quiet without coupling such proof with proof of whether or not he was a violent, dangerous, bloodthirsty, turbulent man, even where there was some evidence of self-defense on part of defendant." Tribble v. State, 145 Ala. 23 Headnote 1, 40 So. 938, 939; King v. State, 17 Ala.App. 381, 85 So. 876; Dyson v. State, 28 Ala.App. 549, 189 So. 784. So, if the trial court had adhered to his ruling forbidding Stewart to answer defendant's counsel's question, "Do you know, or do you think you know his general character in the...