Opinion
6 Div. 375.
May 11, 1939. Rehearing Denied June 8, 1939.
Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler, Judge.
Albert Boutwell, M. B. Grace, and Robert Giles, all of Birmingham, for appellant.
It amounts to an abuse of discretion for the trial court, against defendant's objection, to except a police officer, as a witness, from the rule and thereafter allow him to testify after taking part in the prosecution and hearing other witnesses. New York Life Ins. Co. v. McLean, 218 Ala. 401, 118 So. 753; Smith v. State, 52 Tex. Cr. 80, 105 S.W. 501; Ezell v. Mobley, 160 Ga. 872, 129 S.E. 532; Heywood v. State, 12 Ga. App. 643, 77 S.E. 1130. A witness not shown to have expert knowledge as to such matter may not give his opinion as to whether or not some particular substance constitutes human brains or brains of a particular individual. Walker v. State, 153 Ala. 31, 45 So. 640; Sutherland v. State, 24 Ala. App. 573, 139 So. 110; Lindsay v. People, 63 N.Y. 143; Underhill, Cr.Evi. § 571. The prosecution must establish by the evidence, prima facie, the corpus delicti before other evidence as to any confession, admissions, inculpatory statements or other incriminating evidence is properly receivable. Hill v. State, 207 Ala. 444, 93 So. 460; Shelton v. State, 217 Ala. 465, 117 So. 8; McCullars v. State, 208 Ala. 182, 94 So. 55; Richardson v. State, 22 Ala. App. 277, 114 So. 789; Sanders v. State, 167 Ala. 85, 52 So. 417, 28 L.R.A., N.S., 536; Braxton v. State, 17 Ala. App. 167, 82 So. 657; Overstreet v. State, 46 Ala. 30; People v. Mindeman, 157 Mich. 120, 121 N.W. 488; People v. Hall, 48 Mich. 482, 12 N.W. 665, 42 Am.Rep. 477. In order for the prosecution to show a previous difficulty between the alleged deceased and accused, such difficulty must be shown not to have been too remote. Bird v. United States, 180 U.S. 356, 21 S.Ct. 403, 45 L.Ed. 570. While the bare fact of such difficulty may be shown for the purpose of showing motive or animus, the merits, circumstances and legal consequences of such difficulty are inadmissible. Smith v. State, 197 Ala. 193, 72 So. 316. Attempts on the part of the prosecution to show the commission by accused of other crimes than that for which he is being tried are extremely prejudicial and require a new trial. Their effect is ineradicable. 16 C.J. 600, 1140; Hodge v. State, 97 Ala. 37, 12 So. 164, 38 Am.St.Rep. 145; Scott v. State, 15 Ala. App. 267, 73 So. 212. Misconduct of prosecution in bringing to the jury's attention improper and prejudicial matter warrants a new trial. Brasher v. State, 22 Ala. App. 79, 112 So. 535; Campbell v. State, 19 Ala. App. 349, 97 So. 783. The corpus delicti must be established by the evidence beyond a reasonable doubt and to a moral certainty. This burden is upon the state and unless it is fully sustained there can be no conviction of accused. Winslow v. State, 76 Ala. 42; Huckabee v. State, 159 Ala. 45, 48 So. 796; Smith v. State, 133 Ala. 145, 31 So. 806; Perry v. State, 155 Ala. 93, 46 So. 470; Ducett v. State, 186 Ala. 34, 65 So. 351; 30 C.J. 139, 284; Wharton's Cr.Law, pp. 242, 438, 442, 447; Underhill, Cr.Evi., pp. 45, 46, 1066; Wells v. State, 187 Ala. 1, 65 So. 950; Jordan v. State, 225 Ala. 350, 142 So. 665. Death of the particular person named in the indictment must be shown. Stone v. State, 115 Ala. 121, 22 So. 275; Morningstar v. State, 52 Ala. 405. An attack on the credibility of the testimony of a witness only does not authorize the showing that such witness sustains a good general character. George v. State, 27 Ala. App. 196, 169 So. 325; Id., 232 Ala. 671, 169 So. 328; Rogers v. Moore, 10 Conn. 13; People v. Hulse, 3 Hill, N.Y., 309; Sovereign Camp, W. O. W. v. Screws, 218 Ala. 599, 119 So. 644; Carter v. State, 145 Ala. 679, 40 So. 82. It was error to refuse defendant's requested charges. (Charge 1) Simmons v. State, 158 Ala. 8, 48 So. 606; Walker v. State, 153 Ala. 31, 45 So. 640; (charge 3) Carter v. State, supra; Stewart v. State, 133 Ala. 105, 31 So. 944; (charge 4) Rogers v. State, 117 Ala. 192, 23 So. 82; (charges 8, 9) Pickens v. State, 115 Ala. 42, 22 So. 551. Where newly discovered evidence, not available on the trial and not merely cumulative, is properly presented on motion, a new trial should be ordered if there is a probability that said evidence would change the result. Middleton v. State, 22 Ala. App. 146, 113 So. 625; Sparks v. State, 24 Ala. App. 585, 139 So. 300; Morris v. State, 25 Ala. App. 156, 142 So. 592.
Thos. S. Lawson, Atty. Gen., and Geo. Lewis Bailes, Sol., and Robt. G. Tate, Dep. Sol., both of Birmingham, for the State.
In a criminal prosecution, it was within the discretion of the court to excuse the witness from the rule. Riley v. State, 88 Ala. 193, 7 So. 149; Webb v. State, 100 Ala. 47, 14 So. 865; Brooks v. State, 146 Ala. 153, 41 So. 156; Huskey v. State, 129 Ala. 94, 29 So. 838; Jarvis v. State, 138 Ala. 17, 34 So. 1025. It is permissible for a lay witness to testify that he saw blood and brains. Watts v. State, 177 Ala. 24, 59 So. 270; McClain v. State, 182 Ala. 67, 62 So. 241; Lightner v. State, 195 Ala. 687, 71 So. 469; Fincher v. State, 211 Ala. 388, 100 So. 657; Terry v. State, 120 Ala. 286, 25 So. 176; Evans v. State, 120 Ala. 269, 25 So. 175; Perry v. State, 87 Ala. 30, 6 So. 425. The corpus delicti may be proved by circumstantial evidence, and its sufficiency is a question for the jury. Winslow v. State, 76 Ala. 42; Colquitt v. State, 61 Ala. 48; Ryan v. State, 100 Ala. 94, 14 So. 868; Martin v. State, 125 Ala. 64, 28 So. 92. There may be a conviction of murder even though the body of deceased be completely lost or destroyed. Lewis v. State, 220 Ala. 461, 462, 125 So. 802; Wilson v. State, 191 Ala. 7, 67 So. 1010; Anderson v. State, 24 Fla. 139, 3 So. 884; State v. Lamb, 28 Mo. 218; State v. Williams, 46 Or. 287, 80 P. 655; State v. Henderson, 186 Mo. 473, 85 S.W. 576; State v. Williams, 52 N.C. 446, 78 Am.Dec. 248; Leftridge v. State, 6 Ind.T. 305, 97 S.W. 1018; Campbell v. People, 159 Ill. 9, 42 N.E. 123, 50 Am.St.Rep. 134; United States v. Williams, Fed.Cas. No. 16,707, 1 Cliff. 5; United States v. Gilbert, Fed.Cas. No. 15,204, 2 Sumn. 19; Hindermarsh v. R., 2 Leach C.L. (4th Ed.) 569. In this state the trial judge may determine the order of proof. Scott v. State, 141 Ala. 1, 37 So. 357; Parham v. State, 147 Ala. 57, 42 So. 1. It is permissible to show motive by showing the pendency of an indictment against the defendant in which deceased was the prosecutor or a witness. Childs v. State, 55 Ala. 28; Hodge v. State, 97 Ala. 37, 12 So. 164, 38 Am.St.Rep. 145; Carden v. State, 84 Ala. 417, 4 So. 823; Nickerson v. State, 205 Ala. 684, 88 So. 905. Defendant having introduced testimony to impeach witness Kinder, it was proper to admit evidence of her general good character for truth and veracity. Tilley v. State, 168 Ala. 107, 52 So. 732; Redmond v. State, 4 Ala. App. 190, 59 So. 181; Dickson v. Dinsmore, 219 Ala. 353, 122 So. 437. There was no error in refusing defendant's charges. (Charge 1) Ex parte Davis, 184 Ala. 26, 63 So. 1010; Walker v. State, 117 Ala. 42, 23 So. 149; Moss v. State, 152 Ala. 30, 44 So. 598; Campbell v. State, 182 Ala. 18, 62 So. 57; McClain v. State, 182 Ala. 67, 62 So. 241; (charge 4) Whittle v. State, 213 Ala. 301, 104 So. 668; (charge 9) Burkett v. State, 154 Ala. 19, 45 So. 682; Medley v. State, 156 Ala. 78, 47 So. 218; Pippin v. State, 197 Ala. 613, 73 So. 340; Reeder v. State, 210 Ala. 114, 97 So. 73.
The most seriously contested question upon this appeal relates to the establishment of the corpus delicti.
It is well settled in this jurisdiction that it is the province of the judge to determine whether there is testimony sufficient to make it appear prima facie that the offense has been committed. The evidence on which the judge acts may not necessarily establish the corpus delicti. It may be, and often is, conflicting and contradictory. In such case, the credibility of the witnesses and the sufficiency of the entire evidence are for the ultimate decision of the jury. Winslow v. State, 76 Ala. 42; Ryan v. State, 100 Ala. 94, 14 So. 868; Martin v. State, 125 Ala. 64, 28 So. 92.
The corpus delicti is a fact, proof of which may be made by circumstantial evidence. If there is a reasonable inference deducible from the evidence of its existence, the court must submit the question of the sufficiency and weight of the evidence tending to support that inference to the jury. Martin v. State, supra; Lewis v. State, 220 Ala. 461, 125 So. 802; Wilson v. State, 191 Ala. 7, 67 So. 1010; Newell v. State, 115 Ala. 54, 22 So. 572.
There was sufficient evidence to make out a reasonable inference that the party who was shot on the early morning in question was Walter Parker as named in the indictment and that death must have resulted from the shots fired into him as he has never since been seen or heard from and he was last seen in the presence of the defendant and his companions who picked him up and went off with him in the car and blood and brains were found on the ground where he was shot. This not only made out a prima facie case to be submitted to the jury but to authorize them to find beyond a reasonable doubt that the party shot and removed by the defendant and his companions was Walter Parker and that he was then dead or mortally wounded.
For a full and learned discussion of this question, see State v. Williams, 46 Or. 287, 80 P. 655, which cites and quotes from many reported cases and text books supporting our holding.
As there was proof sufficient to authorize the court to submit the question of the corpus delicti to the jury, there was no reversible error in overruling the objections of the defendant to the evidence based upon the failure to show the corpus delicti, whether they came before or after the same had been established. The trial judge may determine the order of the proof. Scott v. State, 141 Ala. 1, 37 So. 357; Parham v. State, 147 Ala. 57, 42 So. 1.
The trial court did not commit reversible error in excusing witness Jackson from the rule. "When witnesses are placed under the rule, it is discretionary with the presiding judge, to permit exceptions to its enforcement," Hall v. State, 137 Ala. 44, 34 So. 680; Riley v. State, 88 Ala. 193, 7 So. 149; Jarvis v. State, 138 Ala. 17, 34 So. 1025.
The trial court did not err in refusing to exclude the statement of Mark Smith that when he went to the place of the shooting among other things he found and saw were "his brains." The witness testified that "he knew brains when he saw them" and we do not think that it requires only an expert to identify brains. As to being the brains of the deceased Parker, that was not an opinion, but the statement of a fact deducible from all the facts seen by him. He saw the shooting and saw the man fall and picked up and put in the car and, while he ran away a short distance, he immediately returned to the spot where the man fell and merely made a shorthanded rendition of the facts discovered by him and he was open to cross-examination to test the accuracy of his evidence.
The cases of Walker v. State, 153 Ala. 31, 45 So. 640, and Sutherland v. State, 24 Ala. App. 573, 139 So. 110, are not opposed to the present holding.
We find no such misconduct on the part of the prosecutor as to put the trial court in error for a failure to withdraw the case from the jury and enter a mistrial.
There was no error in permitting the State, upon cross-examination of the defendant when a witness, to ask if he and the deceased Walter Parker had had trouble before this time and if he did not have an indictment placed against him growing out of a shooting between the deceased Walter Parker and himself. This was competent as tending to show motive. Childs v. State, 55 Ala. 28; Hodge v. State, 97 Ala. 37, 12 So. 164, 38 Am.St.Rep. 145; Nickerson v. State, 205 Ala. 684, 88 So. 905, and cases there cited.
Martha Kinder, a domestic servant for Mrs. Mollie Johnson, was an important witness for the State and testified as an eyewitness to the homicide and of seeing the defendant and upon cross-examination she testified that she did not mention or report this to any one except her white people. Mrs. Mollie Johnson, the lady for whom she cooked, was then put upon the stand to impeach or discredit the witness and testified that Martha Kinder never said anything to her about having seen or knowing anything about the killing. Having brought out this evidence by Mrs. Johnson to discredit the witness, the trial court did not err in permitting proof of the good character of the said witness. Towns v. State, 111 Ala. 1, 20 So. 598; Tilley v. State, 167 Ala. 107, 52 So. 732. For a full discussion of this question, see the well considered case of Dickson v. Dinsmore, 219 Ala. 353, 122 So. 437.
There is no merit in the exceptions to the oral or general charge of the court.
Charge 1, refused the defendant, was condemned in the case of Ex parte Davis et al., 184 Ala. 26, 63 So. 1010, and cases cited, and which said Davis case expressly overruled the cases holding that the refusal of such a charge was error.
Defendant's refused charges 3 and 4 were, in effect, condemned in Whittle v. State, 213 Ala. 301, 104 So. 668. Moreover, they, like 5 and 7, were substantially covered by the general charge of the court.
Refused charges 10, 11 and 14 were either substantially covered by the general charge of the court or the defendant's given charges, especially given charge 12.
There was no error in refusing the defendant's requested charge 8. It is faulty for the use of the word "very." Moreover, the evidence was not entirely circumstantial.
Defendant's refused charge 9 was condemned in the case of Burkett v. State, 154 Ala. 19, 45 So. 682.
Defendant's refused charges A, B, C and D were the general charges as to the different degrees of the offense charged and were refused without error.
As the trial court committed no reversible error upon the main trial, there was no error in refusing the motion for a new trial as upon the grounds urged in the original motion for a new trial. The motion for a new trial was amended by adding the ground of newly discovered evidence. Conceding, without deciding, that the movant showed the proper diligence, we can not say that this newly discovered evidence was such as to impress the trial court, who saw and heard the witnesses, or that this newly discovered evidence would have probably changed the result. Williams v. Riddlesperger, 227 Ala. 113, 148 So. 803; Fries v. Acme White Lead Color Works, 201 Ala. 613, 79 So. 45; McCormack Bros. Motor Car Co. v. Arnold, 223 Ala. 504, 137 So. 288; Brown v. Brown, 200 Ala. 554, 76 So. 912; Sharp v. Clopton, 218 Ala. 140, 117 So. 647.
The judgment of the circuit court is affirmed.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.