Opinion
8 Div. 321.
August 4, 1931. Rehearing Denied October 6, 1931.
Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.
Alfred Earl Cody was convicted of manslaughter in the first degree, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Cody v. State, 223 Ala. 522, 137 So. 319.
Assignments of error 6, 7, 8, and 10 are as follows:
"6th. The court erred in overruling defendant's objection to the question propounded by the solicitor to the wife of deceased as a witness for the State — 'Is that the hat your husband wore at the time you were in the field that day he was killed,' and the answer thereto, 'yes, sir.'
"7th. The court erred in overruling defendant's objection to the display of the 'old very dilapidated badly worn and soiled straw hat' before the jury.
"8th. The court erred in overruling defendant's objection to the shirt worn by the deceased and permitting them to be displayed before the jury on statements of State's attorney that there were bullet holes about them."
"10th. The court erred in overruling defendant's objection and motion to exclude the hat of deceased from the evidence."
J. A. Lusk, of Guntersville, for appellant.
Defendant's motion for a continuance of the case should have been allowed in order that he might have gotten his witnesses into court. Thomas v. State, 15 Ala. App. 408, 73 So. 558; Bush v. State, 168 Ala. 81, 53 So. 266; Walker v. State, 117 Ala. 85, 23 So. 670; Childress v. State, 86 Ala. 84, 5 So. 775; 16 C. J. 473. It was error to permit the children of deceased to be displayed before the jury. The court should have instructed the jury that their presence could have no bearing upon the case. Fisher v. State, 23 Ala. App. 544, 129 So. 303. The articles of clothing of the deceased in no way tended to establish any material circumstance in the case. Permitting their introduction constituted reversible error. Rollings v. State, 160 Ala. 82, 49 So. 329; Hyche v. State, 217 Ala. 116, 114 So. 906; Id. 22 Ala. App. 176, 113 So. 644; Terry v. State, 203 Ala. 99, 82 So. 113; Boyette v. State, 215 Ala. 472, 110 So. 812; Crenshaw v. State, 207 Ala. 438, 93 So. 465; Puckett v. State, 213 Ala. 383, 105 So. 211. A physician, like any other person, may be called to testify as an expert whether in a civil or criminal matter. It was error for the court to refuse to direct Dr. Isbell to make such examination of defendant as would enable him to form an opinion of his sanity. Ex parte Dement, 53 Ala. 389, 25 Am. Rep. 611; 40 Cyc. 2187. Witness Hyde should have been permitted to testify that in his opinion defendant was insane. Sorter v. Austen, 221 Ala. 481, 129 So. 53.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
It was not shown what the absent witnesses were expected to testify. The motion for a continuance came after the state announced ready for trial, and was addressed to the sound discretion of the court. Palmer v. State, 165 Ala. 129, 51 So. 358; Lumpkin v. State, 19 Ala. App. 272, 97 So. 171. There was no error in allowing the children of deceased to occupy prominent places in view of the jury. However, any alleged error was cured by the later exclusion of the children from the presence of the jury. Pollard v. State, 12 Ala. App. 82, 68 So. 494. In criminal cases, the clothing worn by deceased is generally admissible. Hyche v. State, 217 Ala. 114, 114 So. 906; Andrews v. State, 159 Ala. 14, 48 So. 858; Crumpton v. State, 167 Ala. 4, 52 So. 605; Richardson v. State, 191 Ala. 21, 68 So. 57. It is within the discretion of the court to grant or refuse a motion to execute an inquiry as to the mental status of the defendant at the time of the trial. Granberry v. State, 184 Ala. 5, 63 So. 975; Rohn v. State, 186 Ala. 5, 65 So. 42. For a nonexpert to testify as to one's insanity, it must be shown that he had such acquaintance and continued intimacy as to form an accurate and trustworthy opinion. Sorter v. Austen, 221 Ala. 481, 129 So. 51; Parrish v. State, 139 Ala. 18, 36 So. 1012; Bachelor v. State, 216 Ala. 356, 113 So. 67.
This appellant admittedly killed Dewey Colvin by shooting him with a pistol. The indictment charged him with the offense of murder in the second degree, and as an answer thereto he pleaded: (1) "Not guilty." (2) Not guilty by reason of insanity.
On this appeal the appellant has assigned errors, and in assignments 1, 2, and 3, complains of the action of the court in overruling his motion for a continuance, which motion was based upon the grounds that three witnesses who resided in other counties were absent. It appears from the record that these same three witnesses were absent at the preceding term of the court; that they had been regularly subpoenaed to attend, and that at the former term attachments were issued for each of them; that the attachments had not been served, etc. We have carefully read and considered all that was said and done in the court below in this connection, as shown by the record. There is a total lack of any statement or showing to the effect that the witnesses in question were material, and for this, and other apparent reasons, we hold there was no abuse of the court's discretion in overruling the motion for a continuance.
In support of assignments of errors 4 and 5, appellant cites the case of Fisher v. State, 23 Ala. App. 544, 129 So. 303. These assignments are based upon the fact that pending the trial Mrs. Nellie Colvin, the widow of the deceased, was accompanied by her two small children when she took the stand to testify as a witness. It was insisted by appellant that the presence of these children of the deceased was calculated to arouse the prejudice or sympathy of the jury. Upon inquiry by the defendant's counsel it was ascertained from the mother of the children that one of them was seventeen months old and the other about five years old. During the controversy relative to the appearance of the children in court, some one was secured to take charge of them and they were carried from the courtroom before the examination of their mother as a witness began. We see but slight analogy in the case at bar, on this point, to the Fisher Case, supra, and the Thomas Case, 18 Ala. App. 268, 90 So. 878, upon which the conclusion in the Fisher Case was rested. Thomas v. State, 18 Ala. App. 268, 90 So. 878. We are of the opinion that the case of Pollard v. State, 12 Ala. App. 82, 68 So. 494, 497, is more in point upon the question involved; and that the court did everything in its power to meet the objections interposed by defendant's counsel. Certainly there appears no abuse of the discretion with which the court was vested, for as said in Pollard v. State, supra: "Courts exist for the administration of justice, and in the conduct of trials in general much must, of necessity, and in the very nature of things, be left to the discretion of the court charged with the duty of administering justice, and having the inherent power to regulate such matters in the trial forum." For the reasons stated we cannot sustain the assignments here under discussion.
The sixth, seventh, eighth, and tenth assignments of error are likewise without merit. Hyche v. State, 22 Ala. App. 176, 113 So. 644; Hyche v. State, 217 Ala. 114, 114 So. 906. No extended argument in this connection is necessary.
The ninth assignment of error is based on the refusal of the court to require state witness Dr. Isbell, during the trial, to examine the defendant so as to enable him to express an opinion as to the insanity of the defendant. This also was a matter within the discretion of the court. Nothing appears to show an abuse of this discretion and there was no error in this connection. Granberry v. State, 184 Ala. 5, 63 So. 975; Rohn v. State, 186 Ala. 5, 65 So. 42.
We do not accord to the insistence of appellant presented by the eleventh assignment of error, wherein it is contended that the court erred in excluding the statement of witness Dr. Dowdy to the effect that "they, the government, had a guardian appointed for him." The statement was hearsay pure and simple, was remote, irrelevant, and immaterial as well.
There was no error in permitting witness Hyde, the sheriff, to testify as to confession by the defendant. In the first place the predicate laid was ample and met the required rule. Moreover, at the conclusion of the testimony, the court excluded this evidence and made the statement that it had nothing to do with the case. This question is presented by assignment of error 12.
The remaining assignment of error is based upon the ruling of the court in sustaining the state's objection to the question propounded to witness Hyde on cross-examination, to wit: "Whether or not in his (witness') judgment he (defendant) was a man of sound mind." No sufficient predicate had been laid to this witness, a layman, to warrant him in giving testimony as to the insanity or soundness of mind of the accused. The rule for an examination of this character is stated in the case of Douglass v. State, 21 Ala. App. 289, 107 So. 791. No attempt to comply with this rule appears to have been made. The two issues raised by the dual plea of defendant were questions for the jury.
We find no error in any ruling of the court calculated to injuriously affect the substantial rights of the accused. The record is regular in all things.
Affirmed.