Fowler v. State , 155 Ala. 21 ( 1908 )

DENSON, J.

The defendant was convicted in Houston circuit court of murder in the second degree, and sentenced to imprisonment in the penitentiary for 40 years. From the judgment of conviction he has taken this appeal.

The deceased was the wife of the defendant, and it is the contention of the state that she came to her death in consequence of blows struck by him. The record does not disclose any positive evidence of defendant’s guilt. The establishment of it depended upon circumstantial evidence. The fact rested- in -inference.

If -it be conceded that it was error for the court to allow witness Beatrice Howard to testify that she went into the kitchen at defendant’s house, that she found a pot of greens and some meat on the stove, about half done, and some bread, and that she put some salt in the pot with the greens and put some fire in the stove,' we are, notwithstanding, satisfied that no injury resulted to the defendant therefrom, and under section 4333 of the Code of 1896 we hold that such error is not a reversible one.

It is shown by the evidence of Beatrice Howard that she lived within 150 or 200 yards of defendant’s house, and that she went to the house of the defendant, between sundown and dark, on the evening that the deceased died, and found ber lying on tbe bed in a “cold perspiration.” It was not error to allow tbe witness to testify that just before sbe went to defendant’s bouse tbe defendant’s little girl “came to my bouse in a run.”

Nor did tbe court err in allowing tbe state to proye by this witness that sbe saw defendant whip tbe deceased a week before tbe deceased died. “Tbe relations existing between tbe accused and tbe injured person, when tbe offense is against tbe person or property, may tend to disclose a motive on tbe part of tbe accused and aid in identifying him as tbe wrongdoer.” Long’s Case 86 Ala. 36, 43, 5 South. 443; Hudson’s Case, 61 Ala. 333.

Mrs. Lewis (a witness for tbe state), who aided in dressing tbe deceased for burial, was properly allowed to testify that sbe saw some bruises ■ on tbe deceased, and their location on tbe body. This testimony was not an expression of tbe opinion or conclusion of tbe witness, as is assumed by counsel for tbe defendant. Henry Walker v. State, 153 Ala. 31, 45 South. 640; Watkins’ Case, 89 Ala. 82, 8 South. 134; Sanders’ Case, 134 Ala. 74, 32 South. 654; Terry’s Case 120 Ala. 286, 25 South. 176; Mayberry’s Case, 107 Ala. 64, 18 South. 219.

After Docia Lewis (daughter of tbe witness Mrs. Lewis) bad testified as to' ber visit to tbe defendant’s bouse, at about 4 o’clock in tbe evening before tbe deceased died, and as to tbe condition in which sbe found tbe deceased, it was not error to allow Mrs. Lewis to testify that Docia left ber bouse just before sundown on that evening.

Tbe oral instruction of the court, excepted to, involves no error. Under tbe evidence tbe defendant was either guilty of murder or be was entitled to an acquittal. There was, therefore, no occasion for tbe trial court to give tbe law of manslaughter in charge to tbe jury. Gafford’s Case, 125 Ala. 1, 28 South. 406; Dennis’ Case, 112 Ala. 64, 66, 20 South. 925; Rogers’ Case, 117 Ala. 9, 15, 22 South. 666. It follows that the unnumbered written request of the defendant to the court to charge on the law of manslaughter (even if it had been in proper form), together with written charges 10, 11, 12, 13, and .14, was properly refused; and, of course, the oral request on the same subject was properly refused.

Charges 1, 15, 16, and 17, were properly refused — if for no other reason, because they are argumentative. Dennis’ Case, 112 Ala. 64, 68, 20 South. 925; Oakley’s Case, 135 Ala. 15, 33 South. 23; Bohlman’s Case, 135 Ala. 45, 33 South. 44.

Upon the evidence disclosed in the record the guilt or ' not of the defendant was properly a question to be determined by the jury, and charge 2 (the general affirmative charge) was properly refused.

Intent to Mil is not necessarily an ingredient of murder in the second degree; and charges 3, 5, and 6, in hypothesizing such intent as necessary to be shown to warrant a conviction for that degree of murder, have a misleading tendency, and were properly refused. Lewis’ Case, 96 Ala. 6, 11 South. 259, 38 Am. St. Rep. 75; Smith’s Case, 154 Ala. 31, 45 South. 626.

There is no testimony tending to show the circumstances attending the ldlling, or to show that it was done in heat of passion; nor is there any evidence that the deceased came to her death as the result of a blow from the fist. The defense made was that the deceased came to her death from natural causes — that the defendant had no agency whatever in producing her death. Consequently charges 4, 7, and 8 were properly refused as being abstract. Dennis’ Case, 112 Ala. 64 20 South. 925.

Charges A and B are argumentative, and their refusal involves no error.

In refusing each of charges 18, 19, and 20, the court committed reversible error. Gilmore’s Case, 99 Ala. 159, 13 South. 536; Salm’s Case, 89 Ala. 56, 8 South. 66; Pickens’ Case, 115 Ala. 42, 22 South. 551; Bryant’s Case, 116 Ala. 445, 23 South. 40; Amos’ Case, 123 Ala. 50, 26 South. 524;. Harris’ Case, 123 Ala. 69, 26 South. 515.

It appears from the indictment as copied in the record that it is insufficient, and will not support a conviction, in that it does not conclude, “against the peace and dignity of the state of Alabama,” as required by the Constitution of 1901 (article 6, 170) and by the statute (Code 1896, 4893). Smith’s Case, 139 Ala. 115, 36 South. 727.

For the errors pointed out, the judgment of conviction is reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Anderson and McClellan, JJ., concur.