This is an automatic appeal from a conviction for murder in the first degree and sentence of death.
In bare outline, the evidence for the State tended to show that defendant entered a taxicab and rode out from town to a spot where defendant killed the taxi driver by stabbing him many times with an ice pick. The evidence for defendant tended to show self-defense.
We are of opinion that the court did not err in overruling defendant's motion to postpone arraignment.
In many cases this court has said that a motion for continuance is addressed to the sound discretion of the court and the exercise thereof is not subject to review except for gross abuse. We are not cited to any case where this court has held that the trial court erred to reversal in denying a continuance.
We are not persuaded that the record in the instant case shows such an abuse. The only matter in the record which supports the motion is the motion itself, which is sworn to. The statements in the motion to effect that defendant's counsel needed more time to investigate are "conclusion of counsel, without any fact to show that the accused would be prejudiced" by denial of the motion. Morris v. State, 193 Ala. 1, 6, 68 So. 1003. See Peterson v. State, 231 Ala. 625, 166 So. 20.
Defendant argues that the judgment must be reversed because part of the trial of defendant was conducted while the defendant was absent from the court.
The record discloses that defendant filed a motion to "re-qualify the jury venire" on the ground that defendant was absent from the courtroom at the time the court qualified the venire. Testimony was taken for and against the motion. The court denied the motion and defendant excepted.
After conviction, defendant moved for a new trial. The first and second grounds of that motion seek a new trial for:
The motion for new trial was overruled.
The transcript of testimony commences as follows:
As we understand the record, defendant was not in the courtroom while the foregoing proceedings took place.
The sheriff testified that throughout the qualification of the jurors, defendant "* * * was right in that room with the door open, standing behind some of the jurors. Chief Porter Moore was present with him and Olin Lawson, Deputy Sheriff"; that in the opinion of witness "20 or 25 feet" was the distance "* * * between the court bench here and the door there where the defendant was."
Defendant testified that he could hear the court but could not understand what the court was saying.
Chief Porter Moore testified that he was standing near defendant; that he, Moore, was nearer to the court than defendant was, by 2 or 3 feet; and that he, the witness, was "* * * able to hear the qualification of the jury."
The State insists that because defendant could hear the court defendant was present in court, and in support of that contention relies heavily on Dozier v. State, 17 Ala.App. 609, 88 So. 54. The opinion in that case begins as follows:
The instructions thus given are then set out, but we omit them here because they have no bearing on the question at hand. The opinion continues as follows:
The statement to effect that the action of the court did not constitute reversible error is a gratuitous comment unnecessary to the decision on that appeal. The language plainly shows that the question of the erroneous character of the court's action was not "properly presented for review."
In Sovereign Camp Woodmen of the World v. Wallace, supra, this court said:
The statement in Dozier v. State, supra, to effect that the action of the court did not constitute reversible error is a comment not necessary to the decision in that case and is therefore dictum and is not controlling. Roquemore v. Sovereign Camp, W. O. W., 226 Ala. 279, 282, 146 So. 619.
We are of opinion that on the trial of a capital case, a defendant is not personally present in court when he is not in the courtroom; his counsel is in the courtroom but is not aware of defendant's whereabouts and has not seen defendant that morning; defendant is in a side room, the door of which is 20 or 25 feet from the bench; defendant is in custody and is standing by two officers, one of whom is 2 or 3 feet nearer the bench than defendant; defendant is standing behind some of the jurors; and defendant can hear the court talking but cannot understand what the court is saying.
Because defendant was not present in court when the court qualified the jury, the judgment must be reversed and the defendant tried again.
Defendant argues that the court erred to reversal in asking whether or not the defendant agreed to excusing the jurors who sought to be excused.
In a case where it was insisted that the court erred in ordering jurors who desired to be excused to see the attorney for defendant, this court declined to reverse because the record did not disclose such an order or a proper objection. With respect to the propriety of such an order, however, this court said:
In the instant case, however, the State insists that even if the court did err in asking defendant whether he agreed to excusing the jurors, defendant failed to object to the action of the court in so asking, and, therefore, there is no ruling to be reviewed.
We are of opinion that there is no ruling presented for review because defendant did not object to the inquiry made by the court with reference to defendant's agreeing to excuse jurors.
The purpose of objection and exception are to challenge the correctness of the action of the court so that such action may be corrected by the court itself, if deemed erroneous, and to lay the foundation for review, if necessary, by the appellate tribunal. Without such objection, the trial court ordinarily has the right to assume that its action is acquiesced in and free from error. Haygood v. State, 252 Ala. 3, 38 So.2d 593.
Neither do we think that the automatic appeal statute has dispensed with the necessity for an objection to enable us to review the action of the court in asking defendant whether he agreed to excusing jurors. Under the automatic appeal act, § 382(10), Title 15, Code of Alabama, Recompiled 1958, we are not required to review the oral charge of the court in the absence of an exception thereto. Easley v. State, 246 Ala. 359, 20 So.2d 519; Byrd v. State, 257 Ala. 100, 57 So.2d 388. The instant inquiry addressed by the court to defendant stands on no higher ground than the oral charge of the court, and in the absence of objection to the inquiry there is no ruling for review.
Defendant argues that the court erred in admitting in evidence three photographs of the naked torso and head of the deceased and cites McKee v. State, 33 Ala. App. 171, 31 So.2d 656, for the proposition that photographs should be limited to such amount of the human anatomy as is necessary to show the wounds.
On examination of the photographs, we are of opinion that the photographs were sufficiently limited in that respect, and that the photographs met the test that they must have some tendency to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered. They must have some tendency to shed some light upon some material inquiry. Rollings v. State, 160 Ala. 82, 49 So. 329; Nichols v. State, 267 Ala. 217, 100 So.2d 750.
Defendant argues that his alleged confession should not have been admitted in evidence. Defendant insists that the confession was not admissible because it was obtained at 1:30 a. m., when defendant had suffered numerous mosquito bites, had not eaten for five days, and neither defendant's counsel or relatives were present.
Defendant testified that he got to the sheriff's office where the confession was made at night, "about 11:00 or 12:00 o'clock"; that on Friday night defendant made up his mind to give himself up; that he went to the house of Melvin Pickett; that Pickett gave him a plate which was the first meal defendant had eaten since Monday; that Pickett took defendant to "Mr. Buck's," who was not at home; that defendant stayed in a box car until Pickett returned with Mr. Buck; that Mr. Buck asked defendant only one question and brought defendant to the city jail in Florala; that defendant stayed there a couple or three minutes and they brought him to the office; "But at the mean time I had a couple of drinks which I got, which I was very full and sleepy and tired"; that the drinks were "moonshine."
The witness Wilson, deputy sheriff, testified that the statement was made "Shortly after mid-night." Predicate was laid to show that the statement was voluntary. It was read to defendant. It has been sent to us. It bears several corrections near which appear in handwriting the initials, "A. K." The name, "Ansley Knight" is written at the bottom of each page.
Defendant's testimony in court is similar to the confession. We find no showing that the confession was obtained by threats or promises. The record does not indicate to us that defendant was subjected to prolonged questioning. There was no error in admitting the confession.
Defendant contends that the verdict was contrary to the weight of the evidence, "especially in view of the relative sizes of the two men." A careful reading of the transcript does not persuade us that defendant's contention is correct. In view of another trial we forego discussion of the evidence.
In view of the action of the court in excluding the argument of the solicitor "comparing the defendant to a rattlesnake and a fang to an ice pick," we anticipate that this argument will not be repeated.
Defendant undertook to reserve two exceptions to the oral charge. Counsel for defendant stated:
The oral charge recites in pertinent part as follows:
Every person over fourteen years of age is presumed to be responsible for his acts, and the burden of proving that he is irresponsible
In the instant charge, we find no instruction that defendant's burden was to prove his plea of insanity to the reasonable satisfaction of the jury. The court did instruct that the burden was on the State to satisfy the minds of the jury beyond a reasonable doubt of his guilt. The jury could well assume that defendant's burden "to show" was also to show beyond a reasonable doubt.
Because of the difference between the degrees of proof resting on the State and defendant in the instant case, we think the portion of the oral charge quoted above is fairly subject to the criticism that the charge omits to state that defendant's burden is to prove his plea of insanity to "the reasonable satisfaction of the jury."
While defendant's exception does not reach this omission, the defect is noted so that it may be hereafter avoided.
Defendant's argument is directed to the concluding sentence of the quoted excerpt from the charge. Defendant insists that it was error to leave to the jury the question as to whether or not there was evidence to support the plea of insanity.
This court, in reviewing a conviction for rape, considered the propriety of a statement by the trial court that there was certain evidence before the jury. This court said there was no error in the statement made by the trial court, "but, what that testimony proved was for the jury to determine." The opinion closes with the following quotation:
So in the instant case, whether or not there was any evidence to substantiate the plea of insanity was a question for the court.
After reviewing the evidence, however, we are of opinion that there was no evidence to support that plea. This court has held that where there is no evidence to establish the plea of insanity, it is not reversible error for the court in its oral charge to instruct the jury to the effect that there is no evidence which would justify a finding of not guilty by reason of insanity. Walker v. State, 269 Ala. 555, 560, 114 So.2d 402. This court has further held that persons on trial for the commission of crimes are presumed sane and proof of the crime does not affect that presumption, and that the burden of proof is on defendant to support his plea of insanity. Walker v. State, supra.
As a result, we are of opinion that the portion of the charge excepted to, although incorrect, did not injure defendant, but was favorable to him, because the charge permitted the jury to find evidence to support defendant's plea of insanity, although there was no such evidence before them.
The oral charge recites in part:
In the instant case, defendant reserved a second exception as follows:
An exception to "that part of the charge defining wantonness" has been held too indefinite to reserve an exception to the court's oral charge. Conway v. Robinson, 216 Ala. 495, 113 So. 531. The proper way to reserve an exception to a part of the court's oral charge is for the exceptor to select and recite what the court said, or state the substance of what the court said, and thus specifically bring to the attention of the trial court and this court the matter and rulling of which complaint is made. Pollard v. Rogers, 234 Ala. 92, 96, 173 So. 881.
Statements of law in judicial opinions are not always proper for jury instructions in other cases. Mobile Infirmary v. Eberlein, 270 Ala. 360, 367, 119 So.2d 8. Lifting language from an opinion and embodying it in a written charge does not of itself make it a correct instruction to the jury. Lakey v. State, 258 Ala. 116, 122, 61 So.2d 117. Much is properly said in the opinions of appellate courts which is not proper to be given in charge to juries. Kansas City, M. & B. R. Co. v. Matthews, 142 Ala. 298, 313, 39 So. 207. To like effect, see Woodbury v. State, 69 Ala. 242; Thompson v. Alexander City Cotton Mills Co., 190 Ala. 184, 194, 67 So. 407; Gray v. Anderson, 241 Ala. 154, 157, 1 So.2d 384; Harper v. State, 16 Ala.App. 153, 75 So. 829.
Defendant's attempt to reserve his second exception to the oral charge may be sufficient to present for review the propriety of the first sentence quoted by the trial court from Cooke v. State, supra, but we do not think defendant properly reserved exception to the entire quotation of which he now complains.
The first sentence of the quotation, standing alone, may not be such error as to require reversal, but we are not to be understood as approving that sentence as a proper one to give in a charge to the jury. Defendant's argument is addressed to the entire quotation, not merely the first sentence, but the remainder of the quotation was not excepted to.
In view of another trial, however, and the argumentative nature of the quotation, we deem it proper to suggest that possible error may be avoided by omitting the quotation altogether.
The mother of deceased testified for the State that deceased had twin children, who were eleven years old "the 27th of last May," and who "are here today" and "in the witness room." The court overruled defendant's motion to strike the testimony of the mother.
We have not found where the children of deceased testified or how they have any connection whatever with the issues on trial in this case.
In Fisher v. State, 23 Ala.App. 544, 129 So. 303, the Court of Appeals, in a homicide case, held it to be reversible error to permit widow of deceased to testify "* * * in detail, about the number of children left by deceased, their ages, etc." The Fisher case is criticized, but not overruled
How many children the slain man had, their ages, and that they were in attendance in the witness room are irrelevant facts in the instant case. The writer is of the view that to hold such evidence not prejudicial to the defendant is to disregard the realities of trial atmosphere and the emotional frailties of human nature. This the writer feels bound to note in view of another trial and § 382(10), Title 15, Code 1940, Recompiled 1958; 40 C.J.S. Homicide § 225, p. 1146; and 26 Am.Jur. 367, Homicide, § 314.
The judgment recites in pertinent part as follows:
"* * * Thereupon, the court sentenced the defendant to death * * *."
As in Gray v. State, 55 Ala. 86, the quoted recital of the instant judgment "strictly considered, is the mere memorandum of a ministerial officer, narrative of, but not contemporaneous with, the transaction to which it refers."
The judgment is insufficient. Wright v. State, 103 Ala. 95, 15 So. 506; Marks v. State, 131 Ala. 44, 31 So. 18; Moss v. State, 140 Ala. 199, 37 So. 156; Shepard v. State, 20 Ala.App. 627, 104 So. 674; Blakely v. State, 28 Ala.App. 574, 190 So. 102.
For the errors pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur.