Jones v. State

61 So. 434, 181 Ala. 63, 1913 Ala. LEXIS 134

Opinion

ANDERSON, J.

-An indictment which sets forth the defendant’s Christian name by initials only is subject to plea in abatement, unless it is alleged that the Christian name was unknown to the grand jury otherwise than as laid in the indictment. — Gerrish v. State, 54 Ala. 476; O’Brien v. State, 91 Ala. 27, 8 South. 560; Jones v. State, 63 Ala. 28; Lyon v. State, 61 Ala. 229; Wellborn v. State, 154 Ala. 79, 45 South. 646. It is not so important, however, when individuals are only collaterally concerned in the act for which another is prosecuted — as for instance, those whose persons or property may have been affected thereby — that their names should be so fully and correctly stated, though they also ought to be. In the last class our court has held that it is permissible to charge the initial of the owner of the property affected or the person injured.— Knight v. State, 152 Ala. 56, 44 South. 585; Knight v. State, 147 Ala. 104, 41 South. 911; Crittenden v. State, 134 Ala. 145, 32 South. 273; Lowe v. State, 134 Ala. 154, 32 South. 273; Gerrish v. State, supra; and Lyon v. State, supra.

The designation of the party slain as “S. Rowan,” instead of by his Christian name of “Sloan Rowan,” did not render the indictment subject to a demurrer or plea in abatement, or create a variance available under the general charge. — Franklin v. State, 52 Ala. 414; Knight’s Case, 147 Ala. 104, 41 South. 911.

Moreover, the indictment was not open to a motion to strike, a demurrer, or plea in abatement made or interposed after a plea to the merits. — Hubbard v. State, 72 Ala. 164; Smith v. State, 142 Ala. 22, 39 South. 329. Of course, there was no merit in the motion in arrest of judgment arising out of the point above discussed. It often occurs when answering on their voir dire as to their qualifications as jurors, or whether subject to challenge for cause, that persons do not understand the meaning of the question propounded, and are mistaken in their reply, which is demonstrated by an explanation by the court as to the meaning of the question, and a further answer by the juror, showing that he is competent, and thus qualifying his answers to the unexplained questions propounded to him by the court. — Jarvis v. State, 138 Ala. 17, 34 South. 1025; Ragsdale v. State, 134 Ala. 31, 32 South. 674; Carson v. State, 50 Ala. 134; Hammil v. State, 90 Ala. 577, 8 South. 380; Season v. State, 72 Ala. 191.

We are of the opinion that the jurors Bishop and Roemer were not disqualified as disclosed by their final answers to the court after a proper explanation was made to them as to what constituted a fixed opinion as to the guilt or innoncence of the accused.

There was no error in permitting the state to introduce in evidence what purported to be a diagram of the interior of the car in which the homicide occurred, as corrected by the testimony of the conductor, or which said correction was brought about by his testimony.

The other witnesses who testified as to said diagram were not absolutely positive as to the correctness of its every detail, and used and. referred to it generally as a. memorandum, and for purposes of demonstration, and it was not introduced in evidence until verified and corrected by tbe evidence of tbe conductor. Tbe jury had the benefit of same with and without the said correction, and it was for them to say whether it was correct or not, or whether or not the correction was properly made upon same. The correctness of the diagram, as well as the accuracy of the testimony relative thereto, was a question for the jury, as was, also, the extent to which they were aided by said diagram. — Burton v. State, 115 Ala. 9, 22 South. 585; Burton v. State, 107 Ala. 121, 18 South. 284; Shook v. Pate, 50 Ala. 91.

It was competent for the state to show the previous relationship between the defendant and the deceased, and that deceased had been active in prosecuting him in an arson case, and had appeared and testified on the preliminary as a witness against him, as this showed a motive for wanting to get him out of the way, as well as ill will or malice. — Hudson v. State, 61 Ala. 333.

The trial court committed no reversible error as to the introduction of the communication signed by Rowan and other citizens of Benton as to certain publications of the Advertiser. It was offered by the defendant, and the state did not object to same, and it was signed by Rowan, together with others, and it mattered not who wrote it.

Nor do we understand that the remarks of the court operated to exclude this evidence in fact or in effect. The court did not, by the remark made, weaken or destroy the force of the evidence so as to bring this question within the influence of the case of Griffin v. State, 90 Ala. 596, 8 South. 670. The court merely questioned the admissibility of this evidence when offered by the defense, as there Avas no evidence, up to that stage of the trial, tending to show self-defense, and, while the state had the right to show animus on the part of the defendant towards the deceased, the defendant had no right to show animus or ill will on the part of Rowan towards him until there was evidence offered from which the jury could infer that Rowan was the aggressor, and which was not the case when this communication was offered; and the court merely questioned tire admissibility of same, but let it in as the state had consented to same. Moreover, the communication in question made no allusion to the defendant; and if the same had been excluded, or its weight weakened by the remark of the court, it could have been of no damage to the defendant.

Nor did the trial court err in excluding any threats made by Rowan against the accused, until there was evidence tending to show that the defendant acted in self-defense.

The acts, declarations, and demeanor of an accused, before or after the offense, whether part of the res gestae or not, are admissible against him, but unless a part of the res gestae are not admissible for him. — Maddox v. State, 159 Ala. 53, 48 South. 689. The testimony of the witnesses Mullens, Beasley, and Mahaley, as to what defendant did immediately after the shooting, and that he was seen with another after getting off the train and appeared to be talking to him, tended to show, whether slight or strong, that there was a prearrangement of the homicide. The case of Fonville v. State, 91 Ala. 39, 8 South. 688, is not at all in point, and has no bearing on the present question. There was an attempt to show an assault by the defendant on another person at an entirely different time, and the court held that it had nothing to do with a prosecution for assaulting another person who was in no way connected with the other assault. The case of Moore v. N. C. & St. L. R. R. Co., 137 Ala. 495, 34 South. 617, was a civil case. Moreover, the acts aucl declarations there held to have been properly excluded were made by the plaintiff and offered by him. Of course, a party cannot prove his subsequent acts or conduct if not a part of the res gestae, but this does not prevent the other party from doing so, when said acts or conduct are beneficial to the other party.

Much latitude is given upon cross-examination, and there was no error in permitting the state to prove by Mrs. Jones that she never made any attempt to have the defendant adjudged a lunatic, or placed in an asylum. She had previously testified as to his mental condition, and that he Avas crazy, and, being his mother, the fact that she had never made any effort or attempt to have him placed in an asylum Avas a fact to go to the jury, as affecting the credibility of her evidence as to the defendant’s insanity.

Nor could the Avitness fortify her testimony by shoAVing declarations that she made to her husband.

Upon the plea of insanity, the defendant had the right to prove by Mrs. Jones the acts and declarations of himself tending to shoAV insanity, but the trial court will not be put in error for not letting counsel prove a fact on redirect which should have been brought out on the direct examination. Mrs. Jones had been examined at length by the defendant, and then cross-examined by the state, and the trial court did not err in refusing to alloAv her to be asked, by the defendant on redirect examination, “if she had heard Walter Jones say he Avas going wild.”

While a nonexpert Avitness can give an opinion as to the sanity or insanity of a person, yet, in order for him to give his opinion that a person is insane, he must show an acquaintance with him of continuous intimacy, such as will enable him to form an accurate and trustworthy opinion as to the mental condition of the subject of inquiry.

Whether the qualification of the witness is sufficient is a question to be determined by the trial court, and the very nature of the test requires that its determination in particular cases be left to the sound discretion of the trial court, and which will not be revised on appeal, except for palpable abuse. — Odom v. State, 174 Ala. 4, 56 South. 914; Braham v. State, 143 Ala. 28, 38 South. 919; Parrish v. State, 139 Ala. 16, 36 South. 1012; Ford v. State, 71 Ala. 385. The witness Winfield said he had known the defendant to speak to him for about a year, and that he had known him intimately only for about a month, but he made no statement showing the extent of their association or contact with each other, except as to what happened during three different nights, and we are not prepared to say that the trial court erred in holding that this ‘witness could not give an opinion that the accused was insane.

The last question to the defendant as to the number of persons who had told him about the reports sought, in substance, a mere repetition of facts already stated by the defendant. Moreover, it should have been brought out on direct, instead of the redirect, examination of the defendant as a witness.

There was no reversible error in permitting the witness to state who composed the Vandiver Canning Company, as the defendant and several of the witnesses seemed .to have been connected Avith it.

The question to the defendant as to Avhat he said to Pitts and Spivey as to the hold he had on Vandiver sought proper evidence, and Avas admissible Avithout a predicate. — Ex parte State, infra, 61 South. 54. The defendant had testified as to things he had heard about his wife, and. his theory was that these remarks and reports had come so thick and fast shortly before the killing that they affected his mental condition, and this inquiry of mental responsibility ivas far reaching, and the state had the right to go into any facts, acts, or conduct on the part of the defendant-which tended to refute the claim of insanity, or which was contradictory of facts claimed to be the cause of said insanity in whole or in part. There ivas no error in permitting the evidence of Hood, Pitts, Spivey et al. as to previous conversations with the defendant as to the rumors about his wife, and her relationship with Vandiver.

It was also proper for the state to show statements by the defendant indicating that he ivas not on unfriendly terms with Rowan, as that had a tendency to show that he had not heard, or did not believe, that certain reports had emanated from Rowan. The defendant also proved threats made by Rowan against him, and these expressions of friendship . towards Rowan tended to show that he had not heard of the threats claimed to have been made by Rowan, or did not believe them.

For a long time iir this state an accused could not testify or make a statement of the facts, but the rule was relaxed some years ago so as to permit him to make a statement of the facts, but not under oath, and this statute was subsequently enlarged so as to permit him to testify under oath, upon his trial, like any other witness. Section 6 of the Bill of Rights, which provides that “in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either,” does not relate to rules of evidence or authorize the accused to make a statement of facts outside of the evidence. We think that the real purpose of this provision of the Constitution is to guarantee to the defend ant the right to have his case argued and properly presented to the court and jury by himself and counsel, one or both, but this right must be under the control of the rules of practice, and must be exercised at the proper time. In other words, under our rules and system, the argument of a case is made after the evidence is closed, and the trial court will certainly not be put in error for not permitting a defendant or his counsel to address.the jury before the evidence is all in, or for not letting the defendant make a statement to the jury after the arguments on both sides are concluded. — State v. McCall, 4 Ala. 643, 39 Am. Dec. 314; Blackburn v. State, 71 Ala. 320, 46 Am. Rep. 323; Beasley v. State, 71 Ala. 329. The defendant had already availed himsedf of his right, under the existing law, to testify as a witness, and had no right to address the jury or make statements not amounting to legal evidence until after the evidence was closed. If he then wished to be heard by himself, as well as by his counsel, he should claim the right during the time allotted to him; that is, between the opening and closing arguments of counsel for the state.

The exception to the oral charge is without merit, as it was read from the case of Parrish v. State, 139 Ala. 50, 36 South. 1012, and was a correct statement of the law as to the burden of proof upon the plea of insanity.

Defendant’s refused charges 3 and 4 were properly refused. If not otherwise bad, they were calculated to mislead the jury to the belief that, although they may not have believed the evidence of the defendant, this fact should not have influenced them in passing upon his guilt or innocence.

Charge 24, if not otherwise faulty, invaded the province of the jury, as it instructs, without hypothesis that the effect of hearing, defamatory remarks about his wife was to destroy the defendant’s free agency.

Charge 29, whether good or bad, was covered by given charge 1.

Charge 30 singles out and gives undue prominence to certain parts of the evidence. Moreover, the legal proposition attempted to be asserted is fully covered by given charges 17, 21, 32, and 33.

Charge 40, if not otherwise bad, pretermits an honest or bona fide belief on the part of the defendant that he was in peril.

Charge 55 was properly refused. — Shelton v. State, 144 Ala. 106, 42 South. 30, and cases there cited, and which overruled the case of Broton v. State, 118 Ala. 111, 23 South. 81, and also notes the overruling of Burton v. State, 107 Ala. 108, 18 South. 284, and Brown v. State, 108 Ala. 18, 18 South. 811. See, also, Amos v. State, 123 Ala. 50, 26 South. 524.

Charge 23 is bad, as the jury could have been misled into the belief that any unsoundness of mind amounted to insanity, and it neither defines such unsoundness of mind or insanity as will make a person irresponsible, .and was calculated to confuse the jury.

Charge 18 was abstract, if not otherwise faulty, as cooling time had elapsed between the last report heard by the defendant and the homicide.

Charge 35 was bad. As said above, the defendant had ample cooling time after hearing the report, and before acting, and, if he was affected by the illusion that Bowan disseminated the report, it must have affected Tiim so as to impair his reason and mental powers to the extent of rendering him irresponsible, and which said fact is pretermitted.

Charge 36 gives undue prominence to certain parts >of the evidence, and it is also abstract, as there was no evidence that Rowan had conspired with others to convict the defendant of arson. Moreover, the defendant got the full benefit of same in given charges 17, 21, 32, and 33.

Charge 50 misplaced the burden of proof as to the plea of insanity. — Parrish’s Case, supra.

The defendant was not injured by the refusal of charge “E.” Moreover, it instructed an improper form of verdict.

We think that the preponderance of the evidence before the court, when passing upon the motion for a change of venue, showed that the defendant could get a fair and impartial trial. We do not think that the newspaper publications were such as to influence the public mind to such an extent as to prevent the defendant’s getting a fair and impartial jury, and a fair and impartial trial. — Godau v. State 179 Ala. 27, 60 South. 908. The trial court did not err in refusing the defendant’s motion for a change of venue.

While we have not commented upon every charge refused the defendant, it is sufficient to say that they were either faulty, or were covered by the given charges. Indeed, every point presented by the record has been considered, whether discussed in the opinion or not, and, finding no reversible error, the judgment of the city court is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.