On February 21, 1962, the appellant, Carver David May, was jointly indicted with Jerry Rogers, Zeke Morrison, and Larry Johnson for first degree murder and on February 27 was arraigned, at which time he plead not guilty. On March 29, 1962, Jerry Rogers was tried and convicted and sentenced to sixty years in the penitentiary.
The tendency of the evidence is as follows: On the night of January 2, 1962, the appellant, accompanied by Jerry Rogers, Zeke Morrison and Larry Johnson, went to the Fountain Lanes Bowling Alley in Florence, Alabama. C. T. Richardson testified that while Rogers was in the restroom, the deceased, Travis Pounders, asked Richardson, "What did I think about these young kids trying to dress like motorcycle policemen", having reference to a black leather jacket which Rogers was wearing. When Rogers came out, he commented to Larry Johnson that two men who were drinking in the restroom had threatened to whip him. The defendant, May, overheard this conversation. Richardson and the deceased had paper cups containing a beverage in their hands while they were in the restroom. They had been drinking prior to coming to the bowling alley. There is some dispute as to who left the bowling alley first but all parties left at approximately the same time. While they were in front of the bowling alley, Rogers confronted the deceased about the remark he had made about Rogers' apparel. This was followed by a fight between Rogers and the deceased and the deceased was knocked against the defendant, May, who then hit the deceased on the back of his head but the deceased did not indicate that he was aware that he had been struck by May, nor did it alter his attention toward Rogers. May contends that his striking the deceased was a reflex action. The deceased was between Rogers and the defendant, May, and this blow was apparently unseen by Rogers. According to the testimony of the defendant, the deceased then "went back after" Rogers who then cut the deceased. Richardson had left the scene of the fighting and he was so far away from May that he did not see the fatal blow. The defendant, Rogers, Morrison, and Johnson fled.
On April 3, 1962, the defendant filed a motion for a continuance of his trial and assigned as grounds the allegedly adverse publicity by the newspaper and on television prior to May's trial and during the course of Rogers' trial. A hearing was held on this motion and testimony was submitted thereon by both the defendant and the State. The court overruled the motion for a continuance to which action of the court the appellant duly excepted.
The granting or refusal of the motion for a continuance was a matter lodged in the discretion of the trial court. In overruling the motion, the court did not abuse this discretion. Goldin v. State, 271 Ala. 678, 127 So.2d 375.
The case proceeded to trial on April 9, 1962. Over the objection of the defendant, the State introduced a photograph of the back of the deceased's head showing a bruise. The picture was introduced upon the examination of Dr. William T. McVay, Assistant State Toxicologist, who performed an autopsy on the embalmed body of the deceased the day after his death. McVay testified that in his professional opinion, death "was a direct result of a cutting stab wound to the left chest area", that "the instrument would have been a sharp penetrating instrument whose width would not be more than 5/8 of an inch wide", and that "it would be consistent with having been inflicted by a knife". Dr. Harry M. Simpson, Jr., a reputable practicing physician of Florence, Alabama, who examined the body of the deceased a few hours after his death, testified that, in his opinion, death was the result of a stab wound in the chest which caused shock and the loss of blood. Dr. McVay testified further that he discovered a traumatic injury, or abrasion, on the back of the deceased's head. On cross-examination, Dr. McVay testified that fall backward by the deceased from a standing position, hitting his head on the pavement, "would be consistent with the abrasion".
The defendant assigned the further ground to the admissibility of the picture because "the body had been tampered with and embalmed before the picture was made".
The photograph tended to shed light on the testimony of McVay and illustrate the truth of it and was properly admitted into evidence. The rule now prevailing in Alabama is stated in McKee v. State, 253 Ala. 235, 44 So.2d 781:
The contention of the defendant, that the injury was caused by deceased's falling and hitting his head, did not cause the photographs to become incompetent so as to be inadmissible.
Evidence was before the jury that at the time the photograph was taken the deceased had been embalmed and that the embalming fluid would cause the body to swell. Therefore, the photograph was not rendered inadmissible because the body had been embalmed. McKee v. State, supra.
Even though the photograph may have inflamed the mind of the jury and was cumulative evidence, it was admissible.
When the State rested, the defendant made a motion to exclude the State's evidence, dismiss the indictment, and release the defendant on the grounds that the State failed to make out a prima facie case of murder or manslaughter. The motion was overruled by the court.
The appellant contends that the evidence is insufficient to support a verdict of guilty of first degree manslaughter. The evidence is sufficient to support the verdict under the theory of aiding and abetting in a common enterprise which was entered into on the spur of the moment and which resulted in the homicide of the deceased.
The appellant cites Jordan v. State, 81 Ala. 20, 1 So. 577, a case similar in its salient facts to the case here on appeal, in which the Supreme Court reversed and remanded Jordan's judgment of conviction because of errors committed by the trial court giving faulty instructions to the jury. Able counsel for appellant has not pointed out corresponding errors in the case here and we have not discovered any.
Moreover, the evidence is sufficient to create a jury question as to whether or not May's conduct contributed to the homicide or made it easier for Rogers to commit. (State ex rel. Attorney General v. Tally, 102 Ala. 25, 15 So. 722) and whether or not Rogers knew of May's presence with intent to aid him (Kelly v. State, 31 Ala. App. 194, 13 So.2d 691; Davis v. State, 36 Ala. App. 573, 62 So.2d 224, pet. for cert. den. 258 Ala. 281, 62 So.2d 229).
During cross-examination, the solicitor asked the defendant if he knew that Rogers had a reputation for cutting individuals and the defense's objection was sustained by the court. When the question was asked later on cross-examination, the defense objected again, and again the objection was sustained. Thereupon, the defendant moved for a mistrial, which motion was overruled by the court with proper instructions immediately given that "questions asked by attorneys are never evidence in a case". The fact that the defendant did not answer the question either time rendered even more improbable any possible injury to appellant's substantial rights. The trial court did not abuse his discretion in overruling the motion for mistrial.
The following objections and motions to exclude the arguments of the solicitor to the jury were made by the defendant who received favorable rulings from the trial court:
We find these statements by the solicitor were not error to reverse. Any prejudice that might have been engendered by these remarks of the solicitor was extinguished by the admonitions of the trial judge. Wilson v. State, 39 Ala.App. 77, 94 So.2d 408.
In addition, the following objections and motions to exclude were made by defense counsel to the arguments of the solicitor to the jury and were either not ruled upon or overruled by the trial judge:
A solicitor may make arguments reasonably inferred from the evidence. The following rule regarding the propriety of jury arguments was stated in Cross v. State, 68 Ala. 476:
The rulings of the trial court on the foregoing objections made by defendant to the solicitor's argument were proper.
The judgment in this case is