In Fondren v. State, 204 Ala. 451, 86 So. 71, 72, the Supreme Court held: "It was permissible for the state to ask the witness Fondren if he had not served a term in the penitentiary."Summary of this case from Ledbetter v. State
8 Div. 231.
June 3, 1920. Rehearing Denied June 30, 1920.
Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.
Milo Moody, of Scottsboro, for appellant.
The court erred in refusing the charge requested. 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193; 16 C. J. 102. The father was competent to testify as a nonexpert. 139 Ala. 16, 36 So. 1012; 16 C. J. 525. The fact that the father had been to the penitentiary was not competent. 140 Ala. 29, 36 So. 1009. Dr. Smith was not qualified as an expert. 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193; 139 Ala. 16, 36 So. 1012.
Counsel discusses other assignments of error relative to the admission and rejection of evidence, and in support thereof cites 16 C. J. 525.
J. Q. Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The court properly sustained objections to the question propounded to the father of the deceased. Russell v. State, 87 So. 221, and cases there cited. Counsel discuss other assignments of error, but without further citation of authority.
If the appellant committed the homicide for which he was tried and convicted, and of this fact under the evidence there is little, if any, room for doubt and was at the time legally responsible, he was guilty of a most dastardly and heinous murder.
The litigated issues arose under his plea of "not guilty by reason of insanity," and much evidence was offered tending to sustain this plea. On the evidence, as offered, he requested the court in writing to give the following instruction:
"If the jury find from the evidence that the defendant killed deceased while in an insane condition, caused by disease of the mind, which disease deprived him of the power to resist the impulse to do the act, then he would not be guilty by reason of insanity."
As worded, the charge is open to the criticism that the "insane condition" referred to the deceased rather than the defendant, and as thus written, if not otherwise faulty, was not such a clear exposition of the law as that the court was bound to give it. The charge, however, undertakes to state the rule as applicable to one who, though insane, is capable of perceiving the difference between right and wrong, yet is laboring under the duress of the disease to such extent as to destroy his power to choose the right and abstain from the wrong, and pretermits the essential element that the disease of the brain must be the sole cause, and the crime the direct product or effect of such disease. Parsons v. State, 81 Ala. 577, 596, 597, 2 So. 854.
The witness W. W. Fondren was offered as a nonexpert to show the defendant was insane, and before he was examined as to the facts and circumstances upon which he based his opinion was asked, "Do you think you know whether your son is sane or insane?" The objection to the question was properly sustained. Parsons v. State, supra; Russell v. State (App.) 87 So. 221; Ford v. State, 71 Ala. 385; Caddell v. State, 129 Ala. 57, 30 So. 76.
It was permissible for the state to ask the witness Fondren if he had not served a term in the penitentiary. Moore v. State, 12 Ala. App. 243, 67 So. 789.
It is permissible on cross-examination, for the purpose of testing the memory, sincerity, etc., of the witness, to interrogate him about matters wholly irrelevant to the issues in the case, and the latitude of such examination rests largely in the discretion of the court, and if such discretion is not abused it will not be reviewed on appeal. Cox v. State, 162 Ala. 66, 50 So. 398. The questions of the solicitor propounded to the witness W. W. Fondren as to whether or not he had informed the draft officers, or local board, of his son's condition when he was drafted into the army were of this class. The testimony of Dr. Smith showed that he was competent to give his opinion as to the sanity or insanity of the defendant, and the court did not err in allowing him to testify. The communications from the officers at a military hospital fall within the category of hearsay, and were not admissible.
The failure of the state to prove the venue was not raised in the trial court. Watts v. State, ante, p. 372, 86 So. 70.
Finding no error in the record, the judgment appealed from will be affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.