Granberry v. State , 182 Ala. 4 ( 1913 )

SAYRE, J.

The defendant was convicted under an indictment which charged that he unlawfully, and with malice aforethought, killed Mariah Aldridge by striking her with an axe.

The state’s principal witness testified that at the time of the killing he was at the house of deceased; that defendant, deceased, and one Irene Spratling were also there; that a dispute arose between defendant and the two women about making change for some whisky that defendant had sold to the women; that a fight ensued, in which defendant shot and killed Irene Spratling; that deceased immediately ran from the room in which the shooting was done into another room, whither defendant followed her; that he heard a scuffle and a gunshot in the room to which they went; that deceased then fled from the house, defendant in pursuit; that defendant picked up an axe as he passed the woodpile; that defendant overtook deceased several hundred yards up the road, and there killed her with the axe.

Defendant (appellant) here complains that his objection to the testimony showing the killing of the Spratling woman should have been sustained in the court below. Defendant’s objection was clearly without merit. The evidence objected to tended to prove a distinct felony committed by the prisoner, for which he was not on trial, but it was admissible nevertheless for the reason that the killing of the two women constituted the res gestae of one continuous transaction. The killing of each shed light upon the killing of the other, in that it tended strongly to show the hostile spirit which actuated defendant throughout the transaction.- — Smith v. State, 88 Ala. 73, 7 South. 52; Kennedy v. State, infra, 62 South. 49.

It is common practice, and has often had the approval of this court, to give in evidence the weapon with which a homicide has been committed. The deadly character of the weapon used tends to show the felonious intent. Iñ view of the connection between the two transactions and the tendency of each to illustrate the other, and in view especially of the inference which the jury may well have drawn that defendant first tried to kill deceased with the gun, there was no error in allowing the gun in evidence in this case.

Laura Miller, a witness for the state, testified that she lived within a few hundred yards of the home of deceased, Mariah Aldridge, and that defendant immediately after the killing came to her house and left a shotgun and two loaded shells with direction that they be given to his boy. Defendant had pleaded not guilty and the special plea of not guilty by reason of insanity. The testimony of this witness tended to prove defendant’s reasoned conduct immediately after the killing, and was competent in rebuttal of defendant’s theory that his faculties were so disturbed and disordered that he could not have entertained the specific intent to kill which was a material element of the offense charged against him. Defendant did not object to the statements of the witness. He did, however, object to the introduction of the shells in evidence. But the same considerations which made the gun admissible made the shells admissible also, and, besides, their production tended in some degree to corroborate the testimony of the witness. In this we think no error has been shown.

A defendant should not be allowed to state in his own behalf -the uncommunicated motive or intention with which he did an act, nor should it be called for; but on cross-examination it is competent for the prosecution to inquire about his motives or reasons. — 5 Mayf. Dig. p. 397, § 568.

Defendant had testified that he was so under the influence of whisky and cocaine that he did not know what had taken place on the occasion in question, as he had a right to do. Under these circumstances the question put to defendant on cross-examination was not improperly allowed; nor was there error in the court’s refusal to exclude the answer, even though it be considered to have been harmful to the defendant, which hardly seems to have been possible.

The killing of Irene Spratling having been properly admitted in evidence, the solicitor’s comments on the fact, and his argument in respect to the state of mind evidenced by it, were proper, and the court committed no error in overruling defendant’s objection thereto.

In substance we have already stated defendant’s testimony in regard to his having drank whisky and taken cocaine and its effect upon him at the time of the killing. Evidence for the state went to show that defendant had with him at the time a sack containing several bottles of whisky, and that about five hours after the killing defendant was found apparently asleep in a clump of bushes on the side of the road about a mile and a half from the scene of the tragedy. This evidence made the fact of defendant’s drunken condition, its extent, its effect upon his mental operations at the time of the killing, and whether the intoxication rendered him incapable of premeditation, deliberation, and that formed design to take life which constitutes legal malice, proper subjects of inquiry, and gave the defendant the right to have the jury instructed as to the law of such cases.—King v. State, 90 Ala. 612, 8 South. 856.

Charge 13, refused to the defendant, is framed in the language of Chief Justice, Shaw of Massachusetts, quoted with approval in Beasley v. State, 50 Ala. 150, 20 Am. Rep. 292. In defining that insanity which suffices to excuse crime it is safer at this day to follow our later decisions. — Parsons v. State, 81 Ala. 577, 2 South. 854, 60 Am. Rep. 193; Parrish v. State, 139 Ala. 16, 36 South. 1012. But in this case it is unnecessary to go into the question, for the reason that there was no evidence that defendant was afflicted with a disease of the mind. The charge was therefore abstract.

The other two charges requested by defendant were intended for application to that phase of the case made by the testimony tending to show defendant’s drunkenness, and were relevant statements of the law involved in that testimony and the plea of not guilty. They did not touch, upon the question of insanity or mental disease. They were not calculated to produce in the minds of the jury any confusion in respect to the different issues raised by the defendant pleas. They correctly stated the law, and should have been given. — Morrison v. State, 84 Ala. 405, 4 South. 402; King v. State, supra; Whitten v. State, 115 Ala. 72, 22 South. 483. For the refusal of these charges the judgment of conviction must be reversed.

Reversed and remanded.

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