Summary
In McDonald v. State, 241 Ala. 172, 1 So.2d 658 (1941), the indictment for murder contained several counts, each averring a different means, as here, by which a single offense, murder, was committed.
Summary of this case from Finley v. StateOpinion
8 Div. 65.
April 17, 1941.
Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.
Scruggs Creel, of Guntersville, for appellant.
Where distinct offenses in several counts are charged in one indictment, the distinct offense in each count should be passed on separately by the jury, and unless the evidence supports each count a general verdict of guilty is insufficient. Grayson v. State, 28 Ala. App. 210, 182 So. 579; Tennison v. State, 18 Ala. App. 159, 89 So. 826; Redwine v. State, 28 Ala. App. 95, 179 So. 390. If the evidence justifies it, the jury may find defendant guilty on more than one count. Herbert v. State, 20 Ala. App. 634, 104 So. 681; Loudermilk v. State, 4 Ala. App. 167, 58 So. 180. But if the proof shows accused can be guilty on one count only, he may not be convicted on the other counts. 23 C.J.S., Criminal Law, p. 1086, § 1403 b. There was evidence of flight which defendant in his testimony explained to the jury. He was entitled to have given to the jury his explanatory charge No. 1. Code 1923, §§ 3196, 3197. It is error to exclude the answer of a witness made in response to a question where the State did not object until after the question had been answered. Bailum v. State, 17 Ala. App. 679, 88 So. 200. Where part of a conversation is given in evidence, defendant is entitled to have all that was said upon the subject to go to the jury, whether prejudicial or beneficial to him. Ray v. State, 147 Ala. 5, 41 So. 519; Wesson v. State, 238 Ala. 399, 191 So. 249; Nelson v. State, 29 Ala. App. 121, 192 So. 594.
Thos. S. Lawson, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen., for the State.
The showing of witness Ogletree was inadmissible, as the statement by Chandler was pure hearsay. Wesson v. State, 238 Ala. 399, 191 So. 249. The several counts of the indictment do not charge separate and distinct offenses, but charge the same offense. Hence, the general verdict of guilty returned by the jury was sufficient. Charge 1, refused to defendant, omits the elements of aiding and abetting and submits to the jury the burden of determining what constitutes those elements. It was properly refused. Wheatley v. State, 144 Ala. 68, 39 So. 1014. There was no positive evidence as to just how deceased met his death. The corpus delicti was proven, and the state of the evidence was such as to warrant the conclusion of the jury that deceased met his death by one of several means. The trial court was, therefore, justified in refusing to give the several affirmative charges requested by the defendant. Sanders v. State, 202 Ala. 37, 79 So. 375.
The defendant was indicted for the murder of Irvin Whitaker, the indictment containing six counts, the averments of the means by which the offense was committed varying in the several counts, and in some of them it is averred such means were to the grand jury unknown. This form of pleading is authorized by the statute. Code 1923, § 4539. The means by which the offense was committed is not a constituent element of the offense of murder, though the averments as to the means used are material averments, and must be proved, unless they are averred to be unknown. Code 1923, § 4539; Gaines v. State, 146 Ala. 16, 41 So. 865; Huckabee v. State, 159 Ala. 45, 48 So. 796.
The several counts followed the form prescribed by the statute, Code 1923, § 4556, Form 76. It was physically impossible for the defendant to kill Whitaker more than once, therefore the indictment charged but a single offense, and the appellant's insistence that he was entitled to a separate verdict as to each count of the indictment is without merit.
The contention of appellant that the jurors were not properly examined by the court as to their qualifications to serve as jurors in the defendant's case is also without merit. The bill of exceptions recites that "They were examined by the Court as to their competency as jurors to try this case and as to their general competency as jurors."
It was permissible to allow the witness, John Kirkland, though not an expert, who saw and observed the building before and after the fire, and the body of the deceased and its condition after the murder, to describe the facts according to the effect made on his mind, and state his opinion as to the condition of the deceased's head derived from his observation. Mayberry v. State, 107 Ala. 64, 18 So. 219; White v. State, 237 Ala. 610, 613, 188 So. 388; McPherson v. Martin, 234 Ala. 244, 174 So. 791.
The court did not err to reverse in allowing the witness to testify that he found a cap near the scene of the murder, and that he had seen Hubert Chandler wearing a cap of the same appearance. This testimony was connected up and made pertinent by the subsequent testimony going to show that said Chandler was an accomplice of the defendant in the murder.
The court did not err in allowing the witness to describe the human tracks leading across the field away from the scene of the murder and toward the parked truck that defendant and Chandler were using before the murder, and which they subsequently used in leaving the scene of the murder; that matches and cigarettes were found strewn between the house where the murder was committed and where the tracks were found leading through the field.
The court did not err in sustaining the solicitor's objection to the questions asked the witness Bennett by defendant's counsel: "He never had admitted in any kind or character he had anything to do with the killing has he?" "He never told you anything like that has he?"
What the defendant did not do or did not say could not be a part of a conversation.
The question put to the said witness Bennett: "He told you that he went to Cecil Bartlett's and bought twenty cents worth of whiskey from Cecil Bartlett, didn't he?" was but an attempt to impeach said Bartlett who had testified that he did not sell defendant liquor on the night of the murder, on an immaterial matter and called for hearsay testimony.
Testimony going to show motive, though motive is not an element of the burden of proof resting on the state, is always admissible. Brunson v. State, 124 Ala. 37, 40, 27 So. 410; Jones v. State, 13 Ala. App. 10, 68 So. 690.
Therefore, the court did not err in allowing the witness Province, over defendant's objection, to testify that the deceased kept money in his little store and on his person.
We find nothing in the several rulings of the court in respect to evidence of the defendant's good character that requires treatment. No reversible errors were committed in these rulings.
The court did not err in excluding from the consideration of the jury the statement in the showing made for the absent witness Hilda Ogletree, as to the declaration of Chandler at the hospital, exculpating defendant and assuming full responsibility of the crime. This was hearsay. Wesson v. State, 238 Ala. 399, 191 So. 249.
Defendant's refused charge one ignores the phase of the evidence tending to show conspiracy between defendant and Chandler to commit the offense, and left to the jury todetermine what constituted aiding and abettin.
The evidence going to show what instrument was used in committing the offense is left in inference, and was a question for jury decision, therefore charges 2, 3, 4, 5, 6 and 7, were refused without error.
Charge 8 was also properly refused.
No errors appearing in the record and proceeding of the circuit court, the judgment of conviction is due to be affirmed.
It is so ordered by the court.
Affirmed.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.