Opinion
3 Div. 784.
May 5, 1927. Rehearing Denied June 4, 1927.
Appeal from Circuit Court, Autauga County; George F. Smoot, Judge.
John A. Dickinson, of Prattville, for appellant.
Counsel discusses the questions treated, but without citing authorities.
Harwell G. Davis, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty. Gen., for the State.
The testimony as to the relationship or feeling between defendant and deceased was admissible to show ill will and motive. Lambert v. State, 208 Ala. 42, 93 So. 708. Witnesses were properly allowed to state that defendant appeared or looked frightened. Burton v. State, 107 Ala. 108, 18 So. 284; Burney v. Torrey, 100 Ala. 157, 14 So. 685, 46 Am. St. Rep. 33; Williams v. State, 149 Ala. 4, 43 So. 720.
Defendant was convicted of murder in the first degree and the extreme penalty of the law fixed by the jury.
No preliminary questions as to the sufficiency of venire are presented by the record or argued by counsel.
At the trial the state's evidence sufficiently established the corpus delicti and the venue in the county where the trial was had. The predicate was sufficient to admit declarations against interest or in the nature of confessions. The real conflict in the evidence was as to the character of the homicide. There was evidence by the state tending to show defendant's motive for the commission of the crime. Defendant admitted killing his wife, but sought justification of his act under circumstances setting up self-defense. The verdict of the jury is supported by the weight of the evidence, and the statement of defendant that he struck her with a piece of iron he picked up in the dark, and that she ran and fell upon the bank of Autauga creek, and that he just rolled her into the creek at the point near where the body was found. There was testimony affording the inference of fact that she was breathing at the time she was so placed by the defendant in the waters of said stream.
Charges requested by the defendant that embodied correct propositions of law applicable to the evidence were fully covered by the oral charge. Refused charge 5 sought to make the element of premeditation dependent upon a "conspiracy to take the life of the deceased," when it may be conceived by the defendant on the moment to act unlawfully and to kill under circumstances not in self-defense — and this without conspiring with others to kill and without regard to the length of time intervening after the intent and the act. Daughdrill v. State, 113 Ala. 7, 32, 21 So. 378; Dunn v. State, 143 Ala. 67, 73, 39 So. 147; De Arman v. State, 71 Ala. 351; Id., 77 Ala. 10.
Refused charge 6 pretermits freedom from fault; and charge 7 pretermits imminent and grievous peril. Self-defense was fully defined by the court in the oral charge.
The testimony relating to the feeling between the defendant and deceased, when coupled and considered with their separation, was relevant and competent to show motive or ill will. Lambert v. State, 208 Ala. 42, 93 So. 708.
There was no error in permitting the witness to testify that the defendant, being interrogated about or accused of the crime, looked frightened, or rather "appeared to be greatly afraid." It was a shorthand rendition of collective facts. Fincher v. State, 211 Ala. 388, 390, 100 So. 657; Sharp v. State, 193 Ala. 22, 69 So. 122; Burney v. Torrey, 100 Ala. 157, 14 So. 685, 46 Am. St. Rep. 33; Williams v. State, 149 Ala. 4, 43 So. 720; Burke v. Tidwell, 211 Ala. 673, 101 So. 599; B. R. E. Co. v. Franscomb, 124 Ala. 621, 27 So. 508; Thornton v. State, 113 Ala. 43, 21 So. 356; Burton v. State, 107 Ala. 108, 18 So. 284; Miller v. State, 107 Ala. 40, 19 So. 37; James v. State, 104 Ala. 20, 16 So. 94; Jenkins v. State, 82 Ala. 28, 2 So. 150; Carney v. State, 79 Ala. 14; Whistle Bottling Co. v. Searson, 207 Ala. 387, 92 So. 657; S. N. Ala. R. Co. v. McLendon, 63 Ala. 266, 275, 277; White v. State, 103 Ala. 72, 16 So. 63; Reeves v. State, 96 Ala. 33, 11 So. 296; Perry v. State, 87 Ala. 33, 6 So. 425.
The cases of Johnson v. State, 17 Ala. 618, "that prisoner looked serious," Gassenheimer v. State, 52 Ala. 313, "looked excited," and McAdory v. State, 59 Ala. 92, "looked downcast," have been departed from in the later decisions of this court. Sharp v. State, 193 Ala. 22, 31, 69 So. 122; Woodward Iron Co. v. Spencer, 194 Ala. 285, 69 So. 902; Thornton v. State, 113 Ala. 43, 47, 21 So. 356.
The cross-examination of the defendant by the state's counsel, after defendant's evidence, was free from error. He had testified:
"Q. You were walking off from her? Ans. I had turned my face to her and was walking backward, she was still cutting at me, she had cut at me; she had cut at me four times and didn't stop until I hit her. I hit her with a piece of iron and Major was chunking at me with rocks; he hit me once. After he had hit me, I reached down and got a piece of iron and struck her on the head. During the time she was cutting at me, Major was throwing rocks at me and hit me on the head. I was running backwards, and I struck her on the head, and she turned and ran towards the creek. I didn't know what became of Major; he ran away in the dark. I didn't see him any more. Kate fell on the bank of the creek, I did not pick her up, I shoved her in, I just rolled her over in the creek.
"Q. Was she breathing then? Ans. I don't know, I guess so, I don't know exactly, I was scared, and I don't know. I didn't have that piece of iron in my hands when we met. These are the clothes I had on then; she cut me here. (Indicating) I had on this cap."
And, continuing the cross-examination, no reversible error is shown to have been committed:
"Q. That is the place he hit you? Ans. Yes, sir; I testified before the coroner's jury. I told Mr. Chambliss several times how it happened. I have never told anybody before why the blood was on my cap.
"Q. Don't you know that, if that is blood on your cap, it is your wife's blood that came off her head when you had her on your shoulder to throw her in the creek?
"Defendant. We object to the method of examination and the indirect manner of the solicitor testifying.
"Overruled and the defendant. [Sic.]
"Q. Is not that a fact? Ans. No, sir. I married Mary Burt after this.
"Q. Don't you know that it's a fact that you killed her in order to get rid of her in order to marry Mary?
"Defendant: And we object to that on the same grounds.
"Overruled and the defendant excepts.
"Ans. No, sir; it is not a fact. * * * It is a fact that I wanted to get a divorce after I had killed Kate.
* * * * * * * *
"Defendant introduced cap and exhibited it to jury to show blood stains relative to scar on head produced by licks made by rocks alleged to have been thrown by Major Wilson.
"The defendant here rests."
The exceptions predicated upon the argument of counsel are not well taken. State's counsel, in the heat of his argument, having exclaimed "Crime is rampant in this state and county, and that a special term of the court had been called to put a stop to it and to convict this defendant," was improper. The court promptly said to the jury:
"Yes, gentlemen, the statement objected to by the defendant's counsel is excluded from you. and you should not be influenced in reaching your verdict by this statement."
This was sufficient to eradicate its effect upon the jury, as the statement was not of the prejudicial and ineradicable class, necessitating a reversal, notwithstanding the prompt, positive, and affirmative action of the court in its condemnation and exclusion. Anderson v. State, 209 Ala. 37, 95 So. 171; Davis v. Quattlebaum, 210 Ala. 242, 97 So. 701; Watts v. Espy, 211 Ala. 502, 101 So. 106; A. G. S. R. Co. v. Grauer, 212 Ala. 197, 102 So. 125; Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Ala. F. I. Co. v. Williams, 207 Ala. 99, 91 So. 879.
There was no error to reverse in the statement of the solicitor in the argument:
"Sam Hall, you led your wife to Hymen's altar and made a solemn vow. You killed her, and while she was still breathing carried her on your shoulder and threw her into the creek, and I am going to ask this jury to convict you and give you the extreme penalty of the law — to be hung by your neck until you are dead."
We have set out the statement of the defendant as to what happened at the homicide and his disposition of the body — placing her in the creek immediately after he had stricken her down with the piece of iron.
The provisions of rule 19, "Circuit and Inferior Courts," Code of 1923, are not inconsistent with the right exercise of the discretion of the trial court to permit counsel for the plaintiff to have a second argument, although counsel for the defendant had declined to make argument. So. B. T. T. v. Miller, 192 Ala. 346, 68 So. 184; M. M. R. R. Co. v. Yeates, 67 Ala. 164.
We find no arbitrary or unwarranted invasion of the defendant's rights in permitting the solicitor to argue the facts to the jury.
In the recent cases of Milton v. State, 213 Ala. 449, 105 So. 209, and Puckett v. State, 213 Ala. 383, 105 So. 211, the fact was adverted to that the statutes providing for electrocution become effective when the execution of a death sentence under the law is set for a day subsequent to the last day in February, 1927. Gen. Acts. 1923, p. 759; sections 5309, 5320, Code of 1923, when the defendant was convicted in the circuit court of murder in the first degree and his punishment therefor fixed by the jury "at death," and then it was considered and adjudged by that court "that the defendant, Sam Hall, shall be hanged by the neck until he is dead, and the time of execution fixed for Friday, June 16, 1926," this was in accordance with the law of force. The defendant took and gave notice of appeal to this court, and the execution of that sentence was "suspended pending his appeal," and that appeal was not heard and determined by this court until the method of legal execution was changed by law to that by electrocution. It follows that defendant's judgment of conviction of "guilty of murder in the first degree," and that fixing "his punishment at death," pursuant to the verdict of the jury, be and is affirmed. The law having set aside the adjudged manner of the execution of his punishment at death by hanging by the neck until he is dead, and it is now provided, required, and fixed by law for the execution of such sentence and punishment that it be by electrocution, and the time or date of his execution heretofore fixed by the circuit court (for Friday, June 16, 1926) having expired pending his appeal to this court, the case is remanded to the circuit court, where the defendant will be required and brought in person, to receive in said court a proper sentence, as to the time, place, and manner of the execution upon his person of the death penalty by electrocution, as is now provided and required by law for the execution of the death penalty by electrocution, and upon a day to be fixed by the circuit court and within the statutes made and provided.
The judgment of the circuit court is affirmed, and defendant's case is remanded for the purpose of a sentence.
SAYRE, SOMERVILLE, BOULDIN, and BROWN, JJ., concur.
ANDERSON, C. J., and GARDNER, J., concur, except as to the remandment of the case for sentence, they being of opinion that, the date for the execution of the death sentence having expired, it is not only within the power of the court, but is the duty of the court to fix the date for the execution of the death sentence and to order the manner of its execution in accordance with the statute now in force. Buford v. State, 118 Ala. 657, 23 So. 1005; Howell v. State, 110 Ala. 23, 20 So. 449. See section 3260 of the Code of 1923.