Wray v. State

• Citation: 154 Ala. 36,45 So. 697
• Parties: WRAY v. STATE.
• Decision Date: 06 February 1908
• Court: Supreme Court of Alabama

45 So. 697

154 Ala. 36

WRAY v. STATE.

Supreme Court of Alabama

February 6, 1908

Appeal from Criminal Court, Jefferson County; D. A. Greene, Judge.

Richard Wray was convicted of murder in the second degree, and appeals. Reversed and remanded.

B. M Allen, Robert N. Bell, Gaston & Pettus, and E. W. Winston for appellant.

Alexander M. Garber, Atty. Gen., for the State.

McCLELLAN J.

The tragedy, out of which arose the indictment and conviction of this defendant of murder in the second degree, took place in a large room in a house of ill fame. At the time there were present, beside the deceased, Freeman, and the defendant Wray, four persons, two women and two men. The cause of the death of the deceased, it is conceded, was a wound inflicted by a pistol ball. The ball appears to have entered the body just above the hip bone on the right side; and the examining physician described the course of the bullet to have been indeflectively "upward at an angle of forty-five degrees, penetrated the right lobe of the liver, and ranged more to the front than to the lateral portion, from a perpendicular or medial line of the body." When this physician reached the body of deceased in the room where he was killed, his foot struck a revolver then lying on the floor. The scabbard of the weapon was near by. There appears from the bill no controversy as to the facts as here briefly rehearsed. We refrain from specific reference to any testimony adduced, further than is necessary to decision.

The state's theory was, of course, that the defendant inflicted the immediately mortal wound; while the defendant always asserting his innocence, advanced the theory that the death of the deceased was due to his own act. The evidence, in respect of the agency producing the wound, was purely circumstantial. The state sought to fix the responsibility on the accused by testimony tending to show that deceased, just prior to his death, had incurred the ill will of the accused by familiar conduct with a woman with whom it appeared the accused had frequently shared her bed. However, the accused denied such ill will and adduced testimony to show his friendly relations with the deceased. It is obvious, from this record, that one of the material elements involved on the trial was: Who, of those in the room, shot Freeman? On this vital issue, cast as the conclusion must have been by the whole circumstances attending the event, including the location of the parties in the room, their attitudes, and their general conduct within the res gestæ of the transaction, it was, of course, important to draw, by both chief and cross-examination of all those present, from all the witnesses produced, their knowledge of every incident connected with the death of Freeman.

C. M Lansdowne was of those in the room at the time Freeman was shot. He was a witness for the state; but at the time of the trial he was, the record shows, a very sick man. After some delay he was brought into the courtroom and the bill of exceptions thus details the condition of the witness, the contention of the defendant, and the action of the court in the premises: "On the next morning C. M. Lansdowne was brought into court on a cot upon the opening of court. He appeared to be very ill, and was scarcely able to speak. The defendant objected to the examination of the witness Lansdowne, who was brought into the courtroom in the presence of the jury on a cot and placed in front of the jury on a cot, as tending to prejudice the rights of the defendant, and as being improper and illegal, and because he appeared to be mentally and physically not in condition to be cross-examined. The court overruled the objection, and the defendant then and there duly reserved an exception. On this objection the defendant asked leave of the court to examine Dr. Paul Cocke, the physician of said Lansdowne, and to this the court agreed. After some examination of the witness the court stated: 'Mr. Heflin, I don't believe this man is in a physical condition to go through the ordeal of an examination. I think it would be wrong and inhuman. I don't feel like taking the responsibility, because I don't need the physician to tell me he is not in condition to go through the ordeal of an examination. He is a mighty sick man, and his condition is such that an examination might bring on complications that might prove fatal, and I don't feel like taking the responsibility myself, and will not do it. I have talked to the witness myself, and, while he could make a statement, I believe, to the satisfaction of himself and to the satisfaction of the jury, I don't believe'-- At this point the witness' physician, Dr. Paul Cocke, came into the courtroom, and after conferring with him the court said: 'After talking with the doctor, I don't feel like it would be humane to subject this witness to an examination and the possible excitement that an examination might bring on. The doctor says it might result in bringing on a hemorrhage, which might result fatally, and I cannot give my consent to permit it to be done.' Immediately after this ruling by the court the solicitor offered to introduce the evidence taken on the preliminary before Justice of the Peace Russell, stating in the presence of the jury that they had it taken down stenographically and that he offered to introduce it, and asked whether the lawyers on the other side would agree to have it introduced. The attorneys for the defendant stated that they were not called upon to agree to any thing. Whereupon the solicitor asked the court to let him introduce it, to which the court...