Woodard v. State

• Decision Date: 02 February 1950
• Docket Number: 6 Div. 915
• Citation: 44 So.2d 241,253 Ala. 259
• Parties: WOODARD v. STATE.
• Court: Alabama Supreme Court

Page 241

44 So.2d 241

253 Ala. 259

WOODARD v. STATE.

6 Div. 915.

Supreme Court of Alabama.

Feb. 2, 1950.

Finis E. St. John and Arney Bland, of Cullman, for appellant.

A. A. Carmichael, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.

The following charges were refused to defendant.

23. It is the law, gentlemen of the jury, that a defendant has no right to appear before the grand jury; he has no right to demand that witnesses be subpoenaed before the grand jury, and the indictment is no presumption of the guilt of the defendant.

37. The Court charges the jury that unless the evidence against the defendant be such as to exclude to a moral certainty every supposition but that of his guilt of the offense imputed to him, then they must find him not guilty.

Charge 54, given at defendant's request, is as follows:

The Court charges the jury that the indictment in this case preferred by the grand jury should not be considered by you as any evidence against this defendant.

LAWSON, Justice.

The appeal is from a conviction of murder in the first degree, with punishment fixed at imprisonment for life.

This is the second appeal. We reversed the former conviction. Woodard v. State, 251 Ala. 314, 36 So.2d 897.

It is unnecessary to set out here the tendencies of the evidence for the State and the defendant. Suffice it to say that the evidence found in the record on the present appeal is substantially the same as that set forth in the former opinion.

The case was for the jury on the evidence adduced, and the affirmative charge requested in writing was properly refused.

We have examined the suggestions of error because of remarks of the court and find no reversible error. Counsel for appellant in brief filed on his behalf contend that the remarks of the court in six instances constitute reversible error. But in three of them no exception was taken and we may add these remarks were so innocuous and so commonplace that evidently skilled counsel were not impressed at the time that the remarks could possibly injuriously affect the rights of the defendant. As to the remarks to which exceptions were reserved, we are unable to see how they could have injuriously affected the defendant's rights. In substance, these remarks were: (1) that a witness not answer a question calling for testimony which had already been elicited, the solicitor having objected on that ground; (2) that a motion to exclude was not well taken when made before the question is answered; (3) that counsel not argue with the court as to a ruling on evidence, but save his argument for the jury. All considered, the trial appears to have been conducted with proper regard to all administrative rules, as well as due regard for defendant's rights, and we find nothing in the conduct of the trial judge to merit any condemnation here. Munson v. State, 250 Ala. 94, 33 So.2d 463; Patterson v. State, 234 Ala. 342, 175 So. 371; Norris v. State, 229 Ala. 226, 156 So. 556; Carmichael v. State, 197 Ala. 185, 72 So. 405; Selvage v. State, 29 Ala.App. 371, 196 So. 163.

The cases from this jurisdiction cited by appellant's counsel are different in prejudicial effect. In Griffin v. State, 90 Ala. 596, 8 So. 670, the remark was upon the weight of the evidence; in Holland v. State, 24 Ala.App. 199, 132 So. 601, where the defendant was on trial for murder in the first degree, the court in effect remarked that human life had become too cheap in Alabama.

Reversible error is not made to appear in connection with the trial court's action in permitting Grady Moss, an undertaker, who examined the body of deceased, to testify that in his judgment the wound which he observed on the body of deceased was made by a small caliber pistol bullet. In Baugh v. State, 218 Ala. 87, 117 So. 426, 429, it was said: 'The testimony of the witness Charley Scott as to the size of the wound on the body of the deceased, and his opinion that it was made with a 38-caliber bullet, was not subject to objection made to it by the defendant.'

The witness Moss had been a mortician for approximately sixteen years. He was shown to have been thoroughly familiar with the human body and the location therein of the vital organs. He had examined the wounds on the body of deceased. The trial court did not err in permitting him to testify that the path of the bullet was in or near 'the region' of the heart.

Moss was asked by counsel for the State as to whether or not in his judgment the deceased met his death as a result of the wound which he had described. Objection interposed by counsel was overruled and exception reserved. However, the witness did not answer; consequently, under the rule of our cases, reversible error is not shown in this connection. Stephens v. State, 250 Ala. 123, 33 So.2d 245; Sanders v. State, 243 Ala. 691, 11 So.2d 740; Arant v. State, 232 Ala. 275, 167 So. 540. We do not want to be understood as holding that if the witness had given an affirmative answer that reversible error would appear. The rule as to morticians expressing an opinion as to the fatality of a wound is discussed in the following cases: Snead v. State, 251 Ala. 624, 38 So.2d 576; Webb v. State, 251 Ala. 558, 38 So.2d 340; Thomas v. State, 249 Ala. 358, 31 So.2d 71; Philips v. State, 248 Ala. 510, 28 So.2d 542.

Shelly Hyatt, a deputy sheriff at the time of the killing, went to the scene of the crime shortly after it occurred. He testified that he saw a hole in the back of the shirt on the body of deceased. He also viewed the body shortly after the clothing was removed at the undertaking establishment. He testified that he saw 'a hole in his back' with a 'dark bluish circle around it.' There is no requirement of law that the description of wounds on the body of a deceased person must be given by an expert witness. Phillips v. State, 248 Ala. 510, 28 So.2d 542, and cases cited. We think it is clear from a consideration of the entire record that Hyatt viewed the body of deceased at the funeral home a comparatively short time after the deceased was shot. Moreover, objections were not interposed until after the questions had been answered. Farrior v. State, 12 Ala.App. 123, 67 So. 633.

State witness L. C. Patterson was permitted to testify over the objection of defendant that a few days before Dean was killed he heard the defendant remark to Horace Pope, who was also indicted for the murder of Dean, 'I will just kill the d_____.' Dean had just passed by the defendant and Pope when defendant made the threat. Under the circumstances of this case, the trial court did not err in overruling the objection and permitting the witness to testify as to the alleged threat. Kilpatrick v. State, 213 Ala. 358, 104 So. 656; Glover v. State, 200 Ala. 384, 76 So. 300; Morris v. State, 193 Ala. 1, 68 So. 1003; Ford v. State, 71 Ala. 385. In the last-cited case it was said:

'Threats made by a defendant are generally admitted as tending to prove malice on his part against a deceased person with the killing of whom he is charged. To be admissible they must of course be capable of such construction as that they may have reference to the deceased. A threat to kill one man may not be admissible under an indictment charging the defendant with the murder of, or assault with intent to murder another and different man. But threats to kill or injure some one not definitely designated, especially when made shortly before the commission of the offense to which they may be construed to have reference, are unquestionably admissible in connection with other explanatory circumstances, and on proof of the corpus delicti. The threats of a general character, made the subjects of objection in the record, all come within the influence of the above principle, and were properly admitted. It was a matter of mere inference whether the deceased came within their scope. Their weight or probative force was a question entirely for the jury. Whart. Hom. § 693; People v. Scoggins, 37 Cal. 676, 677; S.C. Cases Self-Def. (Hor. & T.) 596; Ross v. State, 62 Ala. 224, 225; Whart. Cr. Ev. § 756; Redd's Case, Redd v. State, 68 Ala. 492.' 71 Ala. 396.

The acts, declarations and conduct of the accused, against interest, are always competent. There was no error in permitting the witness L. C. Patterson to testify in substance that the accused told him that he should not talk to the State officers who were conducting an investigation of the killing. Hill v. State, 194 Ala. 11, 69 So. 941, 2 A.L.R. 509; Bass v. State, 219 Ala. 282, 122 So. 45; Wilson v. State, 191 Ala. 7, 67 So. 1010. The witness L. C. Patterson was a part-time attendant at the taxi business run by his brothers, for whom the deceased and the accused worked as taxi drivers.

The defendant admitted that during the first week after Dean's death he began to have sexual intercourse with the woman known as Dean's wife and who was living with Dean as his wife at the time of his death. It was not reversible error, therefore, for the State to show that prior to the death of Dean the defendant sought to have dates with this woman and asked her to go on long trips with him. Such testimony was admissible as tending to show motive.

It was within the discretion of the trial court to permit the colicitor to refresh the recollection of the witness Mrs. Dean by reminding her of her testimony on the former trial. This also applies to the witness Fay Kelsoe. Jackson v. State, 226 Ala. 72, 145 So. 656; White v. State, 87 Ala. 24, 5 So. 829; Glenn v. State, 157 Ala. 12, 47 So. 1034; Bringhurst v. State, 31 Ala.App. 608, 20 So.2d 885.

The trial court did not err in permitting State's witness Shepard to testify that three or four months before the death of Dean the defendant, Woodard, stated, 'if Dean didn't keep his mouth out of other people's business, somebody was going to kill him.' Although this statement does not show that defendant said he was going to kill Dean, we think it was admissible as tending to show...