Opinion
8 Div. 563.
June 7, 1923. Rehearing Denied June 30, 1923.
Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.
Wert Hutson, of Decatur, and J. N. Powell, of Albany, for appellant.
The indictment was insufficient in designating the name of the child alleged to have been killed. Jones v. State, 63 Ala. 27; Butler v. State, 17 Ala. App. 511, 85 So. 864; O'Brien v. State, 91 Ala. 27, 8 So. 560; Morningstar v. State, 52 Ala. 405; Wilson v. State, 128 Ala. 17, 29 So. 569. Charge 14 was a correct statement and should have been given. Gilmore v. State, 99 Ala. 154, 13 So. 536; Brown v. State, 150 Ala. 25, 43 So. 194; Neilson v. State, 146 Ala. 683, 40 So. 221. Charges 10, 23, 24, and 25 were each correct and should have been given. Bryant v. State, 116 Ala. 445, 23 So. 40; Churchwell v. State, 117 Ala. 124, 23 So. 72.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The person killed was sufficiently designated, and demurrer to the indictment was properly overruled. Reese v. State, 90 Ala. 624, 8 So. 818. Where no exception is reserved to oral instructions, nothing is presented for review. Ex parte State, 204 Ala. 389, 85 So. 785. Charges 9, 10, and 22 were bad in form. Lee v. State, 18 Ala. App. 566, 93 So. 59. Charges not predicating the finding of the jury upon consideration of the evidence are bad. Edwards v. State, 205 Ala. 160, 87 So. 179.
The charge was infanticide. The conviction and punishment were for murder in the first degree, by imprisonment for life.
The indictment was not subject to demurrer interposed. Reese v. State, 90 Ala. 624, 8 So. 818. The fifth or last count of the indictment charges that Jim Reeder "unlawfully and with malice aforethought killed a female child who had no name, the child of Emma Johnson, by crushing her skull," etc. This is a sufficient averment of the surname of the child, it being averred that it was the "child of Emma Johnson." The failure of allegation of the given or Christian name of the female child, who is averred to have been unlawfully killed, is met by the averment that it "had no name," and there were no contradictory averments as to the name of the child, as is insisted by appellant.
In Jones v. State, 63 Ala. 27, the holding was that an indictment which described the defendant as "Douglass Jones, alias Dug Jones, whose true Christian name is to this grand jury unknown," is inconsistent, and will not support a conviction. That indictment does not present a parallel to the instant count. In the case of O'Brien v. State, 91 Ala. 25, 8 So. 560, the indictment charged that "W. P. O'Brien, whose Christian name is to the grand jury unknown," etc., and was held as an averment by the grand jury that the defendant had a Christian name, not expressed by the letters used (W. P.), but which was to the grand jury unknown. The announcement is contained in Morningstar v. State, 52 Ala. 405, as to the description, with certainty, required as to the party injured by the larceny, that an indictment which described the owner of the property stolen by her surname only, without any averment that her Christian name was unknown to the grand jury, was bad on demurrer. It will be observed of that issue that the inquiry was of the ownership of the property, and hence the requirement that both the Christian and surname should be stated. In the case of Wilson v. State, 128 Ala. 17, 25, 29 So. 569, 571, the indictment was for murder, naming the defendant as "Robert Wilson, alias Duncan," and charged him with the murder of "Clarissa, alias Clara King, alias Cain," and the court said that the offense was charged in the Code form, and that:
"It was permissible to name the defendant under an alias. * * * If the indictment lacks certainty concerning the identity of the person killed, or lacks averment excusing uncertainty in that respect as that person was not otherwise known to the grand jury, than as therein named, such defects might have been available here if they had been made in the trial court."
In Viberg v. State, 138 Ala. 100, 35 So. 53, 100 Am. St. Rep. 22, it was said that it was unnecessary to repeat the Christian name before the surname if the name of the defendant was averred under an alias. See, also, Haley v. State, 63 Ala. 89. The foregoing cases were not to the effect that the ground of demurrer assigned to the fifth or last count of the instant indictment should have been sustained. There was no uncertainty in this count, in which the murder charged was that of the infant child of Emma Johnson, it being averred that said child had not been given a Christian name. There was no error in overruling demurrer to the indictment.
All the rulings on the testimony were made on the cross-examination of witnesses, with two exceptions to which we shall refer later. It is a well-settled rule that in the cross-examination of witnesses there is a wide latitude resting in the sound discretion of the court, and unless it appear that palpable error has been committed to the prejudice of the defendant, in limiting his right of cross-examination, such rulings will not be interfered with. 14 Mich. Ala. Dig. "Witnesses," § 189 et seq. p. 1148. The question propounded to the witness, "Did you intend to put anything on it?" to which the state objected and was sustained, and to which defendant duly excepted, called for an uncommunicated motive or intention that was not admissible. 1 Mayf. Ala. Dig. § 15, p. 329.
The state proved without objection that defendant was the father of the newborn infant that was murdered; that defendant was in close proximity when the child was born, and came at a later hour during the night and took it away; that the dead body was found next morning, buried near the place of its birth; that its skull was crushed; and that this latter fact tended to show that its death was caused by violence at the hands of some human agency, rather than by being exposed to the cold or by freezing. Evidence that defendant was the illegitimate father of the child was admitted (with other evidence) as tending to show motive on his part for its destruction.
The defendant sought by cross-examination of the mother of the child to show that within the period of gestation she had consorted with men other than defendant. This tended to shed light upon the positive statement of the witness that defendant was the father of the child. However, the question, "Haven't you received the company of men frequently, and haven't you done so up there for many years?" was not sufficiently definite as to call for the admission or denial of criminal intercourse on the part of witness, and was not confined to a time within 9 or 10 months (Henderson v. Henderson, ante, p. 73, 97 So. 353) of the date of the birth and death of the murdered child. The subsequent questions, however, which sought to be more definite in the respects we have indicated before the birth of the child on February 8, 1921, were objected to by the state, and, when such objections were sustained, defendant duly reserved exceptions to such rulings. However, each of these questions was irrelevant, as inquiring of the witness her illicit relations with other men prior to the period of gestation of the infant that was murdered. Henderson v. Henderson, ante, P. 73, 97 So. 353; Jee v. Audley, 1 Cox's Ch. Cases, 324, 325. There was no error in sustaining the several objections of the state to the questions indicated.
The fact that one Winsett protested to witness of her condition, and warned her in respects indicated, was immaterial to the inquiry on defendant's trial for murder. Witness had stated that Mrs. Morgan never asked her what was the matter with her, and that she did not tell her (Mrs. Morgan) — did not say, on the morning after the birth of the child, that she had neuralgia. There was no error in declining to permit the witness to be further cross-examined by being asked, "What did you tell her was the matter with you?" The witness had stated she had told Mrs. Morgan she "was sick." The further matter sought to be inquired about was immaterial. The questions to Mrs. Morgan, sought to be propounded by defendant, as to whether or not she had ever been married, and of the nature of her private relations, or of the parentage of her children, were immaterial.
The witness Thomason, having testified to the discovery of the body of the dead child, was sought to be asked by the defendant on cross-examination: "Did Mrs. Addie Winsett tell you she found a piece of quilt out there, and ask you what to do about it?" The objection of the state was properly sustained to the irrelevant inquiry.
The testimony given by Dr. Beck, on behalf of the state, tended to show motive on defendant's part to create an abortion of Emma Johnson, who was "quick with the child" that was delivered and then murdered. The conversation had by defendant Reeder with that doctor had specific reference to Emma Johnson's being enceinte.
There was no error in not permitting defendant's counsel to ask him, "Was there any occasion to wash your boots?" Defendant had stated that he did not wash his boots and hands, as Mrs. Morgan had testified. The condition of the boots immediately preceding the time indicated and the opportunity offered to soil them were matters of inquiry that may have been pursued. The question, "Was there any occasion to wash your boots," if not calling for uncommunicated motive or impressions of the defendant (1 Mayf. Ala. Dig. 329), at least called for a conclusion of the witness in the nature of self-serving testimony. However, the question was immediately changed by the counsel for defendant, as follows: "Was there anything on your boots which was necessary to be washed?" There being objection on the part of the state, and the same having been sustained, defendant reserved an exception. Thereupon the bill of exceptions recites that the witness, in answer to the question, "Was there any blood, mud, or any other foreign substance on your boots?" replied, "There might have been some mud on my boots; nothing else at all." No error was committed in the foregoing rulings of the trial court.
It is next insisted by counsel that reversible error was committed in the explanation made by the court of defendant's given charges 30 and 31. It is an established rule that where oral instructions are given to the jury by the court, and no exceptions are reserved thereto, nothing is presented to this court for review. Ex parte State, ex rel. Smith, Atty. Gen., 204 Ala. 389, 85 So. 785. It will be noted that exception is attempted to be reserved to the explanations made by the court. The exception does not appear in the bill of exceptions; such memorial is the only proper place for an exception as that indicated, in order that the ruling be reviewed. However, the charges are technically bad. Edwards v. State, 205 Ala. 160, 87 So. 179; Lakey v. State, 18 Ala. App. 442, 93 So. 51. The court fully charged upon the reasonable doubt, and did not detract therefrom in the instructions to the jury made the subject of these assignments of error.
Refused charges 9 and 10 are bad in form, and invade the province of the Jury. Lee v. State, 18 Ala. App. 566, 93 So. 59. Moreover, these charges were covered by given charges 8 and 11. Refused charge 11, "on Record, page 13," according to appellant's brief, is not so exhibited by the record, but appears as a given charge on page 10 of the record.
Refused charge 22, covered by given charge 11, is bad in form, is confusing and contradictory. Lee v. State, supra.
Refused charges 23 and 25 do not require the consideration of the evidence in the case by the jury. Edwards v. State, 205 Ala. 160, 87 So. 179. These charges are bad for the further reason that, although a witness might be contradicted on a material issue, the jury might not believe the testimony of the contradicting witness, and believe the testimony of the witness so contradicted.
Refused charge 24 does not require a consideration of the evidence in the case (Edwards v. State, supra), and does not hypothesize that the testimony of the witness is willfully or corruptly false. Robinson v. State, 18 Ala. App. 612, 93 So. 262. It is not sufficient that a witness testify falsely that his evidence may be disregarded, but the testimony must be willfully or corruptly false. The witness might testify falsely through mistake, and at the same time be entitled to credence.
Counsel for appellant refer to refused charge 28, "Record, page 15." There is no such charge. A given charge so numbered is to be found on page 11 of the record.
Refusal of charge 35 was fully covered in given charges 34 and 36 and the oral charge.
Refused charge 37 contains a verbal inaccuracy — "convicing" for "conviction" and this justifies its refusal. However, the charge fails to set out what was said by the solicitor, which, so far as we can tell from the record, was based upon the evidence. It is misleading; while what the solicitor said is not evidence itself, the solicitor was authorized to indulge in a proper discussion of the evidence.
Charge A was abstract. There is no evidence as to manslaughter.
As to charge 14, it is covered in substance by other instructions. Charges to like import have been approved. Odom v. State, 172 Ala. 383, 55 So. 820; Gilmore v. State, 99 Ala. 154, 13 So. 536; Griffin v. State, 150 Ala. 53, 43 So. 197; Brown v. State, 150 Ala. 25, 43 So. 194. It will be observed that several charges were given by the court, at the request of the defendant, which we believe to have fully and fairly covered the same, viz., charges 12, 13, 15, 16, and 17.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.