Opinion
1 Div. 678.
December 3, 1931.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
P. C. Fountain and Graham A. Sullivan, both of Mobile, for appellant.
There was abuse of discretion in refusing to consider showing for absent witness after denying a continuance. Const. 1901, § 6; Brand v. State, 13 Ala. App. 390, 69 So. 379; Spurlock v. State, 17 Ala. App. 109, 82 So. 557. There was no evidence that accused had or suffered from any venereal disease, and testimony that evidence of venereal disease was found in the victim of the assault was too remote and was inadmissible. Powell v. State, 5 Ala. App. 75, 59 So. 530; Folmar v. State, 19 Ala. App. 435, 97 So. 768; Ward v. State, 19 Ala. App. 398, 98 So. 208. Evidence as to whether witness Dr. Cochrane considered defendant safe when he was turned out was not admissible. It is for the jury to determine from evidence offered whether or not he was safe. Sawyer v. State, 20 Ala. App. 504, 103 So. 309; Childers v. State, 18 Ala. App. 396, 92 So. 512; Folmar v. State, supra. And evidence amounting to a mere conclusion is not admissible. Suttles v. State, 15 Ala. App. 582, 74 So. 400; Bowling v. State, 18 Ala. App. 231, 90 So. 33. A general objection was sufficient. Circuit Court Rule 33; Cox v. State, 21 Ala. App. 172, 106 So. 71. If defendant's mind at the time was deranged to the extent of destroying the power to choose between right and wrong, he would not be guilty even if he committed the act; and he was entitled to have the jury so charged. Mizell v. State, 184 Ala. 16, 63 So. 1000; Douglass v. State, 21 Ala. App. 289, 107 So. 791. If, after allowing all reasonable presumptions of the correctness of the verdict, the preponderance of the evidence against it is so decided as clearly to convince the court that it is wrong and unjust, this court will grant a new trial. Western Ry. of Ala. v. Mutch, 97 Ala. 194, 11 So. 894, 21 L.R.A. 316, 38 Am. St. Rep. 179; Bradley v. State, 21 Ala. App. 539, 110 So. 157; Douglass v. State, supra.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The granting of a continuance on ground of absence of witnesses is in the sound discretion of the trial court. Caldwell v. State, 203 Ala. 412, 84 So. 272; Cagle v. State, 211 Ala. 346, 100 So. 318; Williams v. State, 23 Ala. App. 297, 124 So. 402. And accused is not entitled to a continuance on ground of an absent witness who is not shown to be within the jurisdiction of the court. Gaines v. State, 146 Ala. 16, 41 So. 865; Curtis v. State, 9 Ala. App. 36, 63 So. 745; Redmond v. State, 4 Ala. App. 190, 59 So. 181. It is not abuse of discretion to put accused on trial in absence of a witness where he received the benefit of the expected testimony otherwise. Hancock v. State, 22 Ala. App. 651, 119 So. 598; Redmond v. State, supra. Evidence of condition of prosecutrix' sexual organs and presence of venereal disease after the offense is relevant. Malloy v. State, 209 Ala. 219, 96 So. 57. It is admissible to show penetration. Cole v. State, 19 Ala. App. 360, 97 So. 891; Ex parte Cole, 210 A1a. 179, 97 So. 895. Witness Dr. Cochrane was properly qualified as an expert and as having personal knowledge of the particular case, and evidence as to whether he considered defendant safe to turn out upon the community was admissible, bearing directly on the issue of his sanity. Kilpatrick v. State, 213 Ala. 358, 104 So. 656. Requested charge 2 was properly refused as having been fairly and substantially covered in the court's oral charge and charges given at the request of defendant. Code 1923, § 9509. The credibility and weight of the evidence is for the jury, and should not be reviewed on appeal. Walker v. State, 223 Ala. 294, 135 So. 438; 8 Ala. So. Dig. 283, § 742.
The trial was had on an indictment for rape; the jury found a verdict of guilty as charged; and the punishment imposed was that "he suffer death by electrocution."
No point is made upon the record proper; and it has been examined and found regular.
A motion for continuance for the issuance of an attachment for a witness, because of his absence, should disclose, among other things, the fact that the witness was available or within the jurisdiction of the court at the time of the trial; and it is held there was no error in the court's refusal to delay the trial and issue an attachment for a witness in the absence of a proper showing. Gaines v. State, 146 Ala. 16, 41 So. 865; Walker v. State, 117 Ala. 85, 23 So. 670; Knowles v. Blue, 209 Ala. 27, 32, 95 So. 481.
The court issued an attachment for the witness, Dr. J. H. Dodson, returnable instanter, and required that he be put under bond when apprehended. Whereupon counsel for defendant stated that he (counsel) was informed that the witness "has left town, and if he has, is your Honor going to allow us a showing in that?" to which the court replied that deputies were making a diligent search for the witness and his information was "that he is out of the jurisdiction of the court." The sheriff so reported and returned.
There was no reversible error committed by the trial court in declining to grant the motion for continuance, or to put the state upon the unsworn showing, as presented by the record proper.
There was no error in admitting evidence as to the condition of prosecutrix' sexual organs, and of the development and presence of venereal disease in the child. The physician, perceiving the venereal disease with which defendant was affected when arrested, made periodic examinations of the person of the child to note whether or not there was development of like disease in her person. Such being the fact, that evidence was competent on corpus delicti and identification. Malloy v. State, 209 Ala. 219, 96 So. 57.
The immediate signs of injury on the person of the little girl, and those of blood stains on the ground at the place of the injury, were properly admitted as evidence for like reasons. Scott v. State, 48 Ala. 420.
The witness Dr. Cochrane was qualified as an expert, by his personal knowledge of the defendant, to give an opinion bearing on the sanity or insanity of the defendant when discharged from the asylum. This evidence given was competent and relevant under the plea of not guilty by reason of insanity, and cross-examination of the witness was without error. Kilpatrick v. State, 213 Ala. 358, 104 So. 656.
Charge 2, whether correct or not, was refused to defendant without error, as it was covered by the charges given. Section 9509, Code.
The credibility and weight of the evidence under the several issues of fact were for the jury (Walker v. State [Ala. Sup.] 135 So. 438), and the verdict is supported by sufficient evidence on behalf of the state, which, if believed, warranted a conviction.
The judgment of the circuit court is therefore affirmed, and, it appearing that the day fixed by the judgment for the execution of the sentence has passed, it is ordered that Friday, the 15th day of January, 1932, be fixed by this court as the date of the execution of the sentence.
Affirmed.
All the Justices concur.