Opinion
7 Div. 78.
February 26, 1935. Rehearing Denied April 30, 1935.
Appeal from Circuit Court, De Kalb County; A. E. Hawkins, Judge.
Frank Tate was convicted of manslaughter in the first degree, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Tate v. State, 230 Ala. 392, 161 So. 457.
The indictment charged that defendant unlawfully and with malice aforethought killed Taylor Blalock by striking him with an iron pipe, or a piece of iron.
Defendant filed a plea in abatement, setting up that Joe Jones and Harley Jones were regularly and legally accepted and sworn as members of the grand jury investigating this case and returning the indictment; that they were legally qualified to act as such grand jurors; that the solicitor advised them that, since they were first cousins of the deceased, they should not participate in the deliberations of the grand jury; and that they did leave the grand jury room and did not participate in the deliberation of the grand jury in this case.
The state's demurrer to this plea, sustained by the court, was upon the ground, in substance, that the matter complained of was in fact beneficial to defendant.
Defendant further moved to quash the indictment upon the ground made the basis of the plea in abatement, which motion was overruled.
Charge 16, requested by defendant and refused by the court, sought to have the jury instructed that if, under the evidence, the jury believed defendant at the time he was said to have struck Blalock was so drunk that he was incapable of forming the purpose to do a voluntary act, and further that the cause of Blalock's death was the blow alleged to have been struck by defendant, then defendant should not be convicted of any offense higher than manslaughter in the second degree.
State's witness Dr. Floyd testified to his experience as a practicing physician and surgeon of 35 years' duration; being a graduate and postgraduate of named universities; that he had examined and treated Blalock; that Blalock had a cut on the scalp 2 1/2 inches long and a depressed fracture on the outer plate of the skull bone to the extent of about an eighth of an inch. He was asked:
"I will ask you whether in your judgment his death was directly caused from that wound." Defendant's objection, that the question called for an unauthorized conclusion of the witness, was overruled; and witness answered affirmatively.
Haralson Son and C. A. Wolfes, all of Fort Payne, for appellant.
Relationship of grand jurors to the party assaulted is not proper ground for disqualification. Code 1923, § 8686; Collins v. State, 3 Ala. App. 64, 58 So. 80. If drunkenness renders defendant incapable of forming a purpose to do a voluntary act, the offense is reduced to second degree manslaughter. Hill v. State, 9 Ala. App. 7, 64 So. 163; Heninburg v. State, 151 Ala. 26, 43 So. 959.
A. A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
While relationship of a grand juror to the injured party is not ground for objection to an indictment, Sledge v. State, 208 Ala. 154, 93 So. 875; Sisk v. State, 22 Ala. App. 368, 115 So. 766, yet, in this case, nonparticipation of the relatives of deceased in deliberations of the grand jury is not ground for invalidating the indictment. For aught appearing, sixteen members of the grand jury heard the evidence and voted upon it to find the indictment. Therefore demurrers to the plea and motion to quash were well sustained. Code 1923, §§ 8682, 8630; Smith v. State, 142 Ala. 14, 39 So. 329. Whether death resulted from the injury inflicted was properly submitted to the jury. Howard v. State, 24 Ala. App. 512, 137 So. 532; Id., 223 Ala. 529, 137 So. 535. Witness Floyd was properly qualified, and there was no error in allowing him to testify as to his opinion of the cause of death. Defendant's requested charge, relative to reducing the crime to second degree manslaughter on account of defendant's intoxication, was properly refused. Briley v. State, 21 Ala. App. 473, 109 So. 845; Id., 215 Ala. 106, 109 So. 846; Kilpatrick v. State, 213 Ala. 358, 104 So. 656; Cagle v. State, 211 Ala. 346, 100 So. 318.
In the first place, the objection that the indictment was found by a grand jury from which two of its members — relatives of the deceased — had absented themselves upon the request of the solicitor, is not one that can be taken by plea in abatement. Code 1923, § 8630; Collins v. State, 3 Ala. App. 64, 58 So. 80. But if it were, there is alleged nothing to show that the indictment was not found in accordance with Code, § 8682; hence the demurrer to the said plea in abatement would have been sustained without error. Smith v. State, 142 Ala. 14, 39 So. 329.
Obviously, the motion to quash the indictment, on the ground set up, was properly overruled. Code, § 8630, supra.
Drunkenness is no defense as to either degree of manslaughter. Briley v. State, 21 Ala. App. 473, 109 So. 845; Cagle v. State, 211 Ala. 346, 100 So. 318.
Whether or not the wound inflicted upon deceased by appellant caused the death of deceased was a question properly submitted to the jury for decision. There was no error in allowing the witness Dr. Floyd, sufficiently shown to be qualified as a medical expert, to give his opinion as to this. See Howard v. State, 24 Ala. App. 512, 137 So. 532, certiorari denied 223 Ala. 529, 137 So. 535.
We have endeavored to fully perform our duty under Code 1923, § 3258, aided by the brief filed here on behalf of appellant; but we observe nothing calling for more comment than we have made, above.
Appellant appears to have had a fair trial in every way.
The judgment is affirmed.
Affirmed.