Hayes v. State; Duke v. State Court Opinions

    -t;

i HAYES v. STATE
Clte as, Ala.Cr.App.,: 95 9).2d 127

ing none affirm the jurlgment of the Circuit llarris, Jr., J., of firstdegree murder, and

Ara. 127

Court.

AFFIRMED.

All Judges concur.

he appealed. The Court of Criminal Ap-
pcals, Tyson, J., held that: (1) victim's
statements, which were made shortly after
having danced wiih defendant and which
consisted of "did you see the guy I was
dancing with * ' ' he was good looking
wasn't he ' r ' I think I'll go in there and
talk to him, he said he would take me to

[specified place]' .. I got a ride home''
I'll follow you all I ' I if he pulls off on
the side of the road, you all know what to
do," were not "dying declarations" but were
admissible as part of the "res gestae" of
victim's act of bcginning or contemplating a
journey with defendant; (2) evidence, in-
cluding evidence that defendant indicated
that he needed an alibi before victim's body
was discovered, was sufficient to sustain
conviction; (3) admission of State's exhib-
its, which assertedly were of no probative
value, was not prejudicial error; and (4)

neither permitting officer to read defend-
ant's alibi statement into evidence nor aC-

missionof @-
g$ten_yglgigJts of such statement was er-
ror.

Ex Parte Larry MITCHELL

(Re: Larry Mitchell

v.

State of Alabama).

80-297.

Supreme Court of Alabama.

March 24, 1981.

Certiorari to the Court of Criminal Ap
peals,395 So.2d 124.

JONES, Justice.

WRIT DENIED_NO OPINION.

TORBERT, C. J., and MADDOX,
SHORES and BEATTY, JJ., concur.

1. Criminal Law epll34(2)
In reviewing action of trial court in

overruling motion to exclude the evidence,

only the evidence before court at time the
motion was made can be considered.

/fu,ri*inal Law e4l9(r)
V Huu"ruy.evidence is not inherently in-

admissible unless it is patently inadmissible
for any purpose.

3. Homicide c=200

"Dying declaration" is a statement by a
person who believes that his death will cer-
tainly occur soon.

See publication Words and Phrases
for other Judicial constructions and
definitions.

4. Criminal Low @366(2)

Defen{ant was convicted bcfore the In proceeding in which dcfendant was

Circuit Court, Tuscaloosa County, Claude convicted of firstdegee murder, victim's

rl

iC.

ir-
irs

;S

v

nt
le
a-

rrs
ier
lrc
,ef
,la-

)s

:uF

ing
en-
rnd
rla

ich-
;tnd

hid-
rtrd
lbe
'CcU-
owl-
ding
r the

the
logi-
r the

1 tirc
. see

Ap1t.

,9i9).

d for
f ind-

Jamee Michael HAYES, Alias,

v.

STATE.

6 Div. 2.

Court of Criminal Appeals of Alabama.

Nov. 25, 1980.

i
l.
k
t'

Writ denied, AIa.,395 So.2d 150.



128 Alit.

statements, which were made shortly after
having rlanccrl with rlcfcndant, which con-
stitutcrl hcarsay and which consistcd of "<lid
you scc the guy I was dancing with ' ' '
he was guxl lcxrking wasn't he ' ' ' I think
I'll go in there and talk to him, he said he

would iake me to [specified place] * r r l
got a ride home ' * ' I'll follows you allI r I if he pulls off on thc side of the road,
you all know what to do," were not "dying
declarations," but were admissible as part
of the "res gestae" of victim's act of begin-
ning or coniemplating a journey with de-
fen<lant.

See publication Words and Phrases
for other judicial constructions and
definitions.

5. Criminal l/aw e>351(10)

False explanation given by accused of
any suspicious factors or circumstances
tending to connect him with the offense is
admissible in evidence against him.

6. Criminal t aw e'351(l)
Jury may properly consider conflicting

statements as indicating a consciousness of
guilt.

Criminal taw e559
Reasonable inferences from the evi-

dence may furnish basis for proof beyond
reasonable doubt.

@C.irnin.l Law e'561(l)
Guilt need not be proven to exclusion

of everv possibility of innocence in order to
warrant a conviction.

395 SOU'TIIUIIN III'IDOITTDII, 2d SEIIIBS

riminal Law 6562
States evidence should not be stricken

out, as insufficient to support a conviction,
merely because, when disconnected it is

weak and inconclusive, if, when combined,
it may be sufficient to satisfy jury of ac-

cused's guilt.

Criminal t aw call59.4(2)
Credibility of witnesses is solely for

jury's consideration and cannot be exam-

12. Homicide e253(l)
Evi<lcnce, including evitlence indicating

that victim was refcrring to dcfcndant
when victim said "did you see the guy I was
dancing with ' r ' he said he would take
me to [specified place] r r r I got a ride
home ' t *," that defendant indicatcd that
he necded alibi before victim's body was
discovered, that earring found in dcfend-
ant's car may have belonged to victim and
that defendant, who unsuccessfully sought
to obtain alibi by requesting woman to say
that she had "sneake<l out" to be with dc-
fendant, gave alibi statement referring to a
female having to "sneak in" after being
with defendant, was sufficient to sustain
firstdegree murder conviction.

13. criminal l^aw e:l169.l(10)
In proceeding in which defendant was

convicted of firstdegree murder, admission
of certain state exhibits, which were assert-
ed to be of no probative value, was not
prejudicial error, in light of fact that the
formal introduction of the exhibits was pre-
ceded by detailed testimony concerning the
exhibits true nature. Rules of Appellate
Procedure, Rule 45.

14. Criminal Law e=1186.4(5)

Admission of cumulative evidence. even
on an unorspr."o-?rffio,",u,
error. Rules of Appellate Procedure, Rule
45.

15. Criminal Law e1186.4(5)

E
grounds for reversal jl-SCltt Syjdg4ejes
alieady heen admitted to jurv without ob-
j"..tiq. Rules of Appellate Procedurc, Rule
45.

16. Criminal Law e-1170%(t)

Defendant, who was convicted of first-
degrec murdcr, was not entitled to relief on

ap1rctl on bnsis of contention that trial
court crrc<l in allowing officcr Lo refcr to
certain notes during his direct examination
by State, in view of absence of any proof
that he actually referred to the notes or
used them as the basis of his trstimony.ined by Court of Criminal Appeals.



iicating
lendant
rv I was
rld take
t a ride
tcd that
,dy was
defend-

:tim and
r sought
n to say

with de-
ring to a
cr being
r sustain

.lant was
rdmission
re assert-
was not
that the

; was pre-
,rning the
Appellate

,)nce, even
rrejudicial
lure, Rule

ince is not
idence has

'ithout ob-
'dure, Rule

ed of first-
to relief on

that trial
to refcr to
xamination
'any proof
re notes or

testimonY.

l?. Criminal Law e4l4
In procecding in which dcfendant was

convicted of first-degree murder, neither
permitting officer to read defendant's alibi
statement into evidence nor admission of
statements which were officer's handwrit-
ten and type written versions of defend-
ant's statement and which were offered as

evidence that defendant's statement was
written down and not for purpose of re-
freshing officer's recollection, was error.

18. Criminal Lew e-517(7)
Confession is not rendered involuntary

because it is not verbatim as related by the
accused, and it is admissible if its transcrip
tion is substantially as related and affirmed
by the accused.

19. Criminal Law e530
Written confession does not have to be

in question and answer form and it is not
necessary for accused to sign the writing.

20. Criminal Law F7l3
Statements of counsel in argument to

jury must be viewed as having been made
in the heat of debate.

riminal Law e'720(1, 6)

PJeseglhr, as does defense counsel, has
a right to present his impressions from the
evidence; he may argue every matter of
legitimate inference and may examine, col-
late, shift, and treat the evidence in his own
way.

Robert F. Prince, Tuscaloosa, for appel-
lant.

Charles A. Graddick, Atty. Gen., and J.
Thomas Leverette, Asst. Atty. Gen., for ap-
pellee.

TYSON, Judge.

Appellant was indicted and convicted for
the first degree murder of eighteen year old
Regina Carol Quarles by strangling her. In
accordance with the jury's verdict, thc trial
court fixed his ;runishmcnt tt lifc imprison-
ment in thc state pcnitcntiary. Aftcr sen-

tencing, appellant gave oral notice of ap-
peal and his motion for new trial was subse-
quently overruled.

llAr'lls v. STATE
Clte as, Ala.Cr.App.,395 So.2d 127

Ara. 129

Prior to his conviction in the case sub
judice, appellant pled guilty to a two count
indictmcnt returned by the Tuscaloosa
Grand Jury charging assault with intent to
murder and assault with intent to ravish
one Sherry Rumsey (Case No. CC-78-461,
Tuscaloosa County Circuit Court). Appei-
lant was sentenced to twenty years in the
penitentiary. In addition, appellant was
convicted by a jury of assault with intent to
murder one Dena Fair and received an ad-
ditional twenty year sentence. His convic-
tion in that case was affirmed by this court
in Hayes v. Statc, 3&l So.Zd 623 (Ala.Cr.
App.), writ quashed, 384 So.2d 627 (Ala.
1980). Both of appellant's prior convictionsl
involved stranglehold attacks on female (

companions late at night in a one-toonef
encounter. See the facts in Hayes, supra.l

The crux of this appeal concerns the suf-
ficiencv of the Stat€'s evidence. Because of
the number of State witnesses and the com-
plexity of their testimony the facts of this
case are necessarily involved.

The State called as its first witness in the
instant case Dr. Henry Santina, a patholo-
gist with the Department of Forensic Sci-

ences. Dr. Santina performed an autopsy
of the deceased on August %, 1978 at the
scene where the body was found and deter-
minedthe@-
tion. It was established that the deceased

hii-been dead between twenty-four and
eighty hours. Dr. Santina found a brassiere
tied around the victim's neck. He also

found a bracelet and three rings on the
victim's body, but did not find any earrings.
He did not observe any tears in the victim's
eam. Dr. Santina could not determine
whether the deceased had been raped;
"there was no evidence of seminal fluid"
(R.p. 5e1).

Wjlliam H. Landqgp, a forensic serologist
with the Department of Fbrensic sciences,

testified that he receivcd certain items from
Dr. John McDuffic, a criminalist in Tusca-
l<xrsa. Mr. Lan<lrum examincd vaginal I

fluid from the victim and his test rcsults for I

the presence of spermatozoa and .emun I
were negative. "[T]he skin tissue from the I



-_

a whit€
h longer
,r which
iffed up
r to five-

pounds.
,lue eyes.
,ll white
r blouse-
I that he

the girl
'ause he
rted she

're would
here she
c lived in
,ecause it
Ie stst€d
; and she
:cll them
tated she
inewhere,
'r Market
s at the
remed to
lub. He
:r, but he
:nay have
ated that
Mustang,
is small,

rnt to go.

effect of
Prix. He
rnd went
route of

ioulevard,
rto Fores-
ile stated
.rstasia to
load, then
the club'
the way
point out

.:n look at

.l that on
r said this
rst pull on
Woodlantl
hcy pulled
uarked on
the swim-

llAYIIS v. STATE
Clte as. Na.Cr.App.,395 So.2d 127

ming pool. Hc stated they talked a little, Defense counsel Robert Prince testified'l
but he doesn't rcmenrber any particular that he could not remember giving Deputy I
thing they talked about. He stated he Lake permission to interrogate or interviewJ
didn't get the impression that she was the appellant outside his presence. "I re-
married or divorced. He stated that he member having a conversation with Mr.
had sexual intercourse in the backseat of Lake concerning the alibi of Mike Hayes

his Mustang and she was very coopera- and that we had checked her alibi-his alibi

tive. He stated that neither of them ever out and the people were not cooperating, if
got out of the car during that time. homicide unit wanted to help, they could go

Mike stated that he remembers a couple help us check some of these people out' I
of cars passing the clubhouse on the have that conversation, the exact wording I
Woodland Roa6, but no one came around do not remember" (R.p. 809). ivlr. Prince

where they were parked. He was asked stated that he asked the homicide unit on

by Investigator Lake to try to remember three occasions to check out the appellant's

what the girl was *earirg".ince he had to alibi and..that he_was "still trying to find
that girl" (R.p. 813). QslsDs{.-qbieaf4d toUndress her before sexual intercourse. LIri.rr, 8rn \^.Ir. o.to/. r4.Ltilliil:J,lllJliEwu LU

qnd Milra ctntorl thor ho qtill .^,,1.1.'t "rv the Scptember 8 statement being admittedand Mike stated that he still couldn't say
what it was for sure, but it seemed as if and specifically the details-concerning sexu-

he only had to take off one piece of al intercourse' The obig4lon-was overrule

.r"tt i"i rr"io." g,"l"i. n" r*t"i li"t il and the 
,statement 

was admitted and read

was early on Saturday ;;.;i; ;il into evidence in the presence of the jury.

they left the clubhouse and when they Deputy Lake testified that the Homicide
got to the circle going back into Foresta- Unit subsequently checked out the appel-

sia, antl she said let me out here, I'm not lant's alibi and located the "Melinda" men-

suplrcsed to be out this late and I've got tioned in his statement. Pursuant to a war-

to sneak in. He stated she never men- rant Deputy Lakc also located the shirt
tioned her parents, but he just assumed appellant was wearing at the Super Market

that's who she had to sneak bv. He in a suitcase under a baby bed in appellant's

stated he let her out where the circle bedroom.

begins, from the clubhouse, and drove off
going the same way he came in. He
stated he didn't see which way the girl
went in.

He stated that Eve Rominger was at his
table that night and that after the

Quarles girl came up missing, he went to
her and asked if she knew the girl he left
with. He stated that because of what
had happened to him before, be believed
he would be questioned by the police and
he wanted an alibi. He stated that Eve
told him the only blond girl she remem-
bered being around the table was a girl
named Linda, Belinda, or Melinda, but
she tiidn't know her last name.

Mikc also <lrcw a small rliagram dcpicting
thc trca whurc ho let thc girl out of his

c:trr onc of insirlc the Su1rcr Market club
dcpicting his location whcn a girl ap-
proached him about taking her home."
(R.p. 80a)

AIa. f35

On cross-examination, Deputy Lake was
questioned concerning the heart-shaped
black onyx earring he had looked for in his
investigation. The officer admithd J
"there's no way to tell who put that earring I
in the Hayes car" (R.p. 836).

Serseant Shirlev Fields of the Tuscaloosa
Poliee Departm-nt tEiilied that he was the
first Homicide Officer to arrive on the
scene where the deceased's body was found.
He stated the body was located ten feet
from the pavement on the roadway en-
trance to the Branscomb apartments ap
proximately two hundred yards off High-
way 69 South in Tuscaloosa County (R.p.
8lZ). Sergeant Fields made photographs at
thc sccne and reccivcd three rings and a

hracclct which wcrc rccovercd by Dr. Santi-
na at thc timc of thc autopsy. No othcr
jewelry was found on the body.

Sergeant Fields also participated in a

search of appellant's automobile on Septem-



ItAYtlS v. STATE
Clte as, Ala.Cr,App.,395 So2d 127

Ala. l4L

162). Mr.
I ladies in
r drove a
the neigh-
hree-week
nd fifteen

rrdy testi-
,: who had
Forestasia

,:ate Melin'
d that she

,Irs. Harris
hlond hair
n out with
ris lived in
. Hardy did
alking with

.;tand in his

re deceased.

rpellant ad-
r two count
Lh intent to
o murder on
been found
th intent to
iovember 20,

he went to
5, 1978, and

,ce with the
rh Eve Rom-
nn,I think I
:rnd I danced

1181, 1182).

ith Melinda
having even

r weekend, or
rs before his

name of the
iuper Market
e thought she

I kind of long
rrrah Faucett
t stst€d that
hcr home in

.cd that "she
;'ore theY left
,utes later the

girl returnetl, "grabbed ahold of my arm
and said, 'Come on, let's go"' (R.p. ll92).
Appellant said he walked outside with her

and <li<ln't attract anyone's attention to his

knowledge (R.p. 1193). The girl told appel-

lant she drove a Grand Prix and lived in
Forestasia "about a mile or two from where

I lived" (R.p. 1196).

Appellant stated that he drove into
Woodland Forrest at the girl's direction and

parked beside the clubhouse instead of go-

ing to Forestasia (R.p. 1199). "We sat

there and talked for a little while, listened

to the radio" (R.p. 1200). Appellant stated

he had sexual relations with the girl twice
that night, but never asked the girl her
name or telephone number (R.p. 1209). Ap
pellant said he had never taken any ear-

rings off a girl before he "made love . . .

unless they were real big" (R.p. f210). Ap-
pellant said that when they drove toward
the Forestasia circle, the girl told him "she

had to sneak in, just stop and let her out"
(R.p. 1215). Appellant did not see which
way she went when she got out. He just
"pulled off" (R.p. 1216).

Appellant admitted he was sick most of
the weekend and that he first found out the
deceased was missing when he went to
work Monday morning. Appellant said he

called Eve Rominger to find out if she knew

the name of the girl he had been with that
night. "She told me she didn't know for
sure, but she thought it might be Melinda
or Belinda or Linda, something like that"
(R.p. 12a). Appellant stated he had left
the Super Market the previous weekend

with Kathy Wilson (R.p. 1226). At the con-

clusion of appellant's testimony the defense

rested.

tU As stated previously, the crux of this

appeal concerns the sufficiency of the

Stat€'s evidence. In reviewing the action

of the trial court in overruling a motion to
exclude the evidence, only the evidence be-

fore the trial court ut n. -n

was marle can be consrdered. James v-

s@.re77);Liv'
ingston v. Statc,44 Ala.App. 559, 216 So.2d

?31 (1968). The standard of review is

whether there exists legal evidence befor-e
----1

the jury.,at the time the motion was made,

from which the jury could by fair inference
find the accused guilty. Stewart v. State,
350 So.2l ?64 (Ala.Cr.App.197?). In decid-

ing this question we ane required to vjgL
the evidence presente{-!g-,,1!!A!!g[gg1!
ru

I.

Before deciding whether the State's evi'
dence was sufficient to establish a prima
facie case, we must first resolve the thresh-
old question whether the deceased's state-
ments to Sharon and Karen Phillips at the

time the three were about to leave the

Super Market were properly admitted over-
appellant's hearsay objections. We hold /
that they were, based on long standing au- f
thority, and that no elTor resulted from the I
admission of this t€stimony. I

To quickly summarize the crucial facts,

Bubba Bridges, Sharon and Karen Phillips
and the deceased walked outside the Super
Market around 1:45 a. m. The three girls
were preparing to go home and were seated

in the Phillipses' car which was parked in
the parking lot. The deceased had last
been seen dancing with appellant around

1:30 a. m. As the three girls were seated in
the car, preparing to leave, the deceased

made the following remarks: "Did you see

the guy I was dancing with? . . . He was

good looking wasn't he? . . . I think I'll go

in there and talk to him, he said he would

take me to Fosters.... I got a ride
home.... I'll follow you all. . .. If he

pulls off on the side of the road, you all
'know what to do." The deceased then left
Bubba, Sharon and Karen and was last seen

walking back toward the Super Market.

As previously stated, appellant made

strcnuous hearsay objection to the de-

ceased's statements, but was overruled.
The State con'.ended the statements were

part of the res gestae and were also dying
declarations.

tuted hearg4y. Our Supreme Court in
Pffii l,owe,263 Ala. 410, 82 So'2d 606,



court, or writtcn evidence, glg@Lement
made out of court, the stFmentEEE:
o-frlffiiEliffiion to show the truth
of matters asserted therein, and thus
resting for its value upon the credibility
of the out-of-court asserter."

.l- As stated in C. Gamble. McElrov's Ala-
bama Evidence $ 242.01(l) (3rd Ed. f977):l

"The opportunity to cross-€xamine the

witness is one of the major reasons for
the hearsay rule. It has been held that
the real value of cross-examination of a
witness is the opportunity to test his (1)

perception, sometimes called knowledge

or opportunity to observe; (2) recollec-

tion, sometimes called memory; (3) nar'
ration, sometimes called accuracy; and

(4) sincerity, sometimes called veracity."

I2l Hea64y evidlrryg--hryyq-E
unless it is

Two such exceptions were mentioned by the

res gestae exceptions.

t31 Without question, the deceased's

statements were not dying declarations.
As is stated in C. Gamble, McElroy's Ala'
bama Evidence S %8.01(1) (3rd &1. 1977):

"A dying declaration is a statement by
a person who believes that his death will
certainly occur soon. He must be gnpped
by that despair of life which is naturally
produced by an impression of almost dis-
solution, a dissolution so near as to cause

all motives of falsehood to be superseded

by the strongest inducements to strick
accuracy. It has been said that the de-

clarant, when making the statement,
must have been in settled, hopeless expec-

tation of impending death."

Certainly the deceased's statements do not
fall into this category.

t4l The other exception referred to is

the res gestae exception. One of the cases

cited by the trial court, on which it based its
ruling to admit the deceased's statements,
was Cook v. Latimer, 279 Ala. n4, lU
So.zd 807 (1966) which @ncerns this excep
tion.

ln Cook, supra, a civil suit to recover
damages for personal injuries, the evidence

objected to was given by a witness who was

present at the Latimer (deceased's) resi-
dence on the evening of the accident before

Cook and the deceased left on their trip to
Troy. The substance of the evidence wa-s as

follows from the Supreme Court opinion:

. "The two boys came into the room

where the witness was visiting Mrs. La-
timer. Walter Latimer, Jr., asked his
mother if he could go to Troy with appel-

lant. Mn. Latimer first refused permis'

. sion for Walter to go because he had been

ilI. Appellant told Mrs. Latimer that he

and Walter were going in appellant's car
and that appellant would drive. Mrs. La-
timer then gave Walter permission to go

on the trip.
As already noted, there was a disputc

as to which of the boys was driving at the

142 Ala.

609 (1955) lists three authorities whic'r have

defined hearsay:

"ln J ongfr-0a-Eyidr;arr,Civil Cascs, 4th
Ed. Vol. l, p. D7, it is said: 'By hgEY
is meant that kind of evidence which
derives its value, not solely from the cred-
it to be attached to the witness himself,
but also in part bccausc of the veracity
and comlrctency of some other percon

from whom the witness may have re-

ceived the information.'
ln Wigmore on Evidence, Srd Ed. Vol.

5, $ 1362, we find: 'It is sufficient to note

that the Hearsay rule, as accepted in our
law, signifies a rule rejecting assertions,
offered testimonially, whffi -!aven9t
beerr in some wav subi"crc f
cross+xamination.'
m;ffi,ffit"al Evidence, llth Fd.,

r S 421'I, says: 'Hearsay evidence may be

ldefined as that kind of evidence which

I does not derive its value solely from the

I credit to be given to the witness himself,

I but rests, also, in part, on the veracity

I and competency of some other person."'

found in

testimony in

391-r SO[ITIIultN ltIiPOItTlrL" 2d SEITIES

U,ir/.PState at the time the deceased's statementvfX@pf
were admitted, thc dying declaration and

ane manv exceotions to the seneral rulq



l-1 'F

y the
nents
r and

rsed's
tions.
.Ala-
r97?):

nt by
h will
ipped
urally
;t dis.
cause
seded
strick
re de-
ment,
:xpec-

Io not

to is
cffles

red its
nents,
1, l&1
rxceP

)cover
idence
ro was
) resi-
ircfore
'.rip to
vas a8

rinion:

room
's. La-
d his
appel-
ermis-
I been
\at he
t's car
s. La-
to go

ispute
at the

has held that '[w]hat a person says on

/ setting out on a journey, or to go to a

I particular place, explanatory of the ob-

I ju.t he has in vicw in so setting out, is rcs

I sertae evidencc, and may bc proven; and

\ the jury may give it such wcight as thcy
I ttrint it is entitled to.' [Citations omit-
I

\ t"al.
The statement here in question was

made by appellant on setting out on the
journey and is explanatory of the jour-
ney. It was, therefore, admissible as res
gestae evidence." 184 So.2d 810.

One of the cases cited as authority in
Cook, supra, and which is more on point
with the instant case, is Thornton v. State,
253 Ala. 444,45 So.2d 298 (1950). ln Thorn-
Lon, supra, involving a conviction for first
degree murder, the deceased made the fol-
lowing statements to his wife in the privacy
of their home just before leaving for the
defendant's house:

"He tole (sic) me he was going to Mr.
Thornton's house. That he had loaned
him $700 to buy some whiskey Mr. Thorn-
ton was to take from a relative, and after
he let him have the money, within thirty
minutes afterwards, he was sorry he did.
He said he didn't want to get mixed up in
it and said,'I am going over there and
stay around a while and if they don't
bring it in, I am going to try to get my
money back and not have any more to do
with it. Don't let anybody know about it
and be sure not to let my Daddy know
about it. I I r.' He said 'Mr. Thornton
promised to pay him the S?00.00 and give
him $300.00 if he would help him out and
let him have the money.' " 45 So.2d at
298, 290.

On appeal, the defendanl in Thornton,
supra, alleged that "the testimony given by
the deceased's wife as to the statements
made by the deceased to her as he was
preparing to start on the journey from thcir
house to the house of defendant, admitted
oler his objections, were illegal, hearsay
testimony erroneously received in evidenee
over defendant's protests and were highly

Ala. 143

Writing to this issue the Supreme Court
held:

"'Evidence of the statements of a per-
son sincc deceased with references to the
purpose or destination of a trip or jour-
ney, no matter how short, that he was
about to make, has been admitted as com-
petent in a considerable number of ac-
tions, both civil and criminal in character.
See the following cases: (citing Mutual
[Life] Ins. Co. v. Hillmon, 145 U.S. 285, Lz

S.Ct. 909, 36 L.Ed. ?06, and decisions
from other federal courts together with
cases from Alabama and many other
states).'

The rule was stated in Alabama by this
court as early as 1844, speaking through
Collier, C. J.: 'It was said in West v.

Price's Heirs, 2 J. J. Mar.sh [Ky.], 380,

that "conversations or declarations made
by the actor or party concerned, at the
time an act is done, and which explain
the quo animo and design of the perform-
ance, may, whenever the nature of the
act is called in question, be given in evi-
dence as part of the res gestae. Without
tolerating this explanation of the acts of
men, by receiving their accompanying
declarations, we should be often misled as

to their true nature and character, and
consequently liable to fall into errors in
respect to them. The rule requiring res
gestae declarations to be received as evi-
dence, is a necessary and very useful one."
(Citing authorities).

'In the case before us, the thing done
was the departure of the plaintiff from
his home; what he said upon leaving, or
immediately previous thereto, as to the
point of his destination, the object he had
in view and when he expected to return,
were explanatory of his intention; and in
the absence of opposing proof, might re-
pel the imputation that he was abscond-
ing or othcrwise endcavoring to evade
the scrvice of ordinary process. Thcse
declarations, it is true, rvould not be con-
clusive upon the defendanl.; but it would
be com1rcl*nt for him ln prove Lhat Lhey

IIAYITS v. STATD
Clte as, Na.Cr.App.,395 So.zd 127

time of the accidcnt. This cvidence obvi- grejudicial and rlcprived thc defendant of a
ously related to that issue. This court fair trial." 45 So.2d at 300.



u7'-

395 SOUTHERN R}IPOITTER' 2d SERIES

144 Ala.

wcre not just cxponen[s of the rcs gcstac'

o;h;^:;il;;'"'*outa he admissible ttr

Jf,o* t,ttu, his acts and intentions werc

Xi;;#;;;'n *t'ut his statements indi-

;il;. 
"il; 

lestimonY on this Point' it

will follow, was rmproperly rejectc<l''

iiiu ,. Burroughs,6 Ala' 733'-'iii. 
rule of evidencc has been 

-re-

*i*i,"i""uriit'"a bv our courts' y^i.l'-

';:;; iini"Y, eo Aia' 523' 8 So' 130;

Iilir,i 7. 
'iri,-, 

?? Ara' 1; Harris v'

itr't ,'go er a. ?A, l1 So' 255; Burton- v'-

iir[, ii".ota't,t2 So' 585; centrut or

t"iLi-n-'c". v. Bett,l8? Ala' 541' 65 so'

ffi,'ilil tn v' state'218- tP f1 tt"t

i".'Ofa, Rogers v' State' 16 Ata'app'-oo'

il;:rM3; tt v' statc'26 Ala'APP' 344'

159 So. 500.'1; ;t gestae alluded to here is not

th; ;;t;;t;'e of the main fact-the mur-

;;;.';;;rh" res gestae of the act being

::;i"trJ';i imireaiatelv contemplated

[r ii"'a".r"rant, the act of beginning or

:J"ffi;ffi;J'ii'"t'iP or journeY- M:y

iri".'srrtu] rrg etu' 53' 48 so.^619;

ff)r|'." o;;", 15 AIa'[APP'].304' ?3 So'

'tffr" iuii'nan v' State' 1? Ala'APP' 4e'

the trip or journey," however short' 45

;;;; ;1 i,x. tt'u', ralling within thc res

;#; ;; ;,.' : L"- lo","J Tt'f;i il:l;;were ProllerlY admtsstt

;J -;;i;;Llong *ith the other evidence

by the jurY.

State's evidence' There was no

to the i Cimbo v.fqb,.

the issue before us:

s6t'b".oi iriz (eru'rgze)' an opiniol uu:

;tJJ;; Judge Bowen of this court' we

iiri-irr"' folloiing authority pertinent to

h"il;i;;;i,,r,o t'iui judge-or the

il;J,il 
- ;, " :1.1 .:,';',f,";'ir[il"J:exclude everY rcxso

' ;r;;;, i1-*'ilt; but rather whether

'l;;,1:Y;,u::,I'd'fi #'i*ffirq;
;*; ;;; v' unit'ed st'tes' 416

i.ia'rzio (5th cir' 196e)' The proce-

l; ;;t aPPellate review of the suffi'

;;;;";fii" cvidence has been aptly

sct out in Otlom v' (Jnitetl Statas' 377

f'.Za eSe, 855 1l>th Cir' 196?):

'OU" t "" 
k*, tn rnind that lhe tcst

i"i" uPPri'a is not simPlY :l:t['-i:

"Our obligation, thercforc' is to exam-

f#'t,ft"'i.""f to dctermine whethcr

;;;';t anY theorY of ihe evidence

i."* *f,i"fl" the jury might have ex-

86i
AI:
nit

(

sat
At
pr(
sor

COli

mit
So..

352
cur
tior
r('ir
'Th
thrr

sh<,

evi,

50, 81 So. 449'"-tiu 
rufing of the court in receiving the

teJil;oi the witness Mrs' TaYlor-was

;ilffit *ittt tl'" rule and free from

error." 45 So'2d at 301'

While in Thornton' supra' .the 
deceased

referred to the appeiiant by namc tn lts

tt*"'t'""at1"" with' iis wife and here 
' 
the

;;;ffi;;;"rr"J ontY to the "good-J":klT*

ffiffi -^. 1rT.11q,{:|.t"ff 
t[f":[:

flJ".'":'J;i;u v i nai'-ti ne' ishable" Jh' :li-
H;il;;a in"t tn",'1"ri'i"r*';fi 

?X,1
she was dancing wt

il;".;;;t *as ti'e appellant with whom she

ii"i'i"r*a "r,ty 
minutes earlier' offered'to

take her to Fosters' the very community

liil"r"'.'n" ii*a' The deceased also.stated

i}l", =f'," ""4 
the "good looking S'y *'""Yo'

&,rrci"n; *'ith' "woultl follow" the Phillips

*'.i-' "ln,,*.: 1l:ll":tj,.il lili;.l;' fi ,ll:, roatl." Thcsc sLrtcn

/ ;:;.' .rp;;, tun r'" ialrlv 
''ai't 

to uc Irart of

J ti;"'d';stae of ttto a"t bcing pcrformcd

1 l'r"i#"ai"i"iv contemplatetl bv thc acclar-

| ;;,;;;.i or u"glnning or contemptatrns

I



llAYIrS v. SIA'I|,)
Citt as, Ala.Cr.App., 391-, Sb.zd t 27

clurlctl every hl,lxrthcsis cxcept guilty urc of proof that thc rlefcnrlrrnt is guilty..
beyond a reasonable (loubt. Rua v. Such proof is always insufficicnt, unless
United Statc.s, 5 Cir., 1963, 321 F.2rl it excludes, to a moral certainty, cvcrv
140; Riggs v. united s&rtc.s, 5 cir., other reasonablc hylrcthesis, but that of
1960, 280 F.zd 949. In Jurlge Thorn- the guilt of the accused. No matter how
berry's words, strong the circumstances, if they can be
r I I t the stanrlar<l utilize<l by this reconciled with the theory that some oth-
Court is not whcthcr in our opinion thc cr l)crson may havc done thc act, thcn the
evidcncc anrl all rcasonable infcrcnces rlcfenrlant is not shown to be guilty, by
therefrom failcd to exclude every hy- that full measure of proof which the law
pothesis other than guilt, but rather rcrluires.' Ex parte Acree, 68 Ala. ?34
whether thcre was evidcncc from (l87g).
which the jury might reasonably so Guilt is not esta5lishc<l 6y circumstantial
conclude.' Williamson v. Unitcvl cvitlcncc unlcss the facts reliql on arc
Statc,s,5th Cir. 1966,365 F.Zd 72,74. such that it is t5c onl_y conclusion fairly
(Emphasis supplie<l) to bc rlr:rrvn from thc,n. I.uquay i..

'The sanctity of the jury function de- Shte,22Ala.A,p. ?lB,ll4 So. g9i (lg17).
mands that this court never substitutc its If all thc material circumstanccs in cvi-

352 So.2d 506 (A1a.1976). However, cir- In reviewing the facts of this case we
cumstantial evidencc justifies :r convic- think that there was sufficient evirlence,
tion only whcn it is incronsistcnt with any tlgg!-tg$ t,aro]y, from which thc jury:l}
rcasonalllc thcory of innoccncc. might havc cxclurlcrl every rcasonalllc hy-
'The humanc provisi<-rns of thc law are , pothcsis cxccpt that of guilty beyond a rca-
that a prisoncr, charge<l with a felony, sonable doubt. The appcllant and the de-
shoultlnotlrcconvfficcastxlwercsccnrlancingtogcthcrat1:30
evirlencc, unlcss it shows by a full mcas- a. m. just fiftccn rhinutcs bcfore the de-

Ara. 145
45

res
rnts

'red
nce

Lhe

CSS

lis
]68
i,fl,
'tu-

we

to

on
rst

a-
to
.'l-

:d
'rt

IL

i-

d
lr

3



146 Ala.

ceased and the Phillips sistcrs u'ere in tlte
Phillipses' car ready to go home. To tlre
Phillips sisters' knowlcdge the deceascd hatl

danced with only one other l)crson at thc

Supcr Markct that night, a high school

classmate, whom all thc girls wcll knew by

name. Neither of the Phillips sisters knew

the appellant by name, nor was thcre any

evidence that thc deccased did; howevcr,
the tleceased dancctl with ap1rclk:nt mortr

than once that night. At approximately

1:45 a. m., while the Phillips sisters and the

dcceased were seated in the Phillipses'car
outside the Super Market, the <lcceaserl re-

arked, "Di<l you sce Lhe guy I was rlanc-

ing with? Hc was goorl looking, wasn't hc?

I think I'll go in thcre an<l talk to him, he

aid he would takc me to Fos[crs. I'll fol-
ow you all. You know what to do if hc

rulls off." To Sharon Phillips' knowlctlgc
ihe appellant was the last pcrson the tlc-

ceased had danced with at 1:30 a. m. Also,

the deceased, in making the remark, did not
refer to her high school classmate, whom

she knew by name and who was the onlY

other person she had been seen dancing
with, but referred to "the guy I was danc-

ing with." It is certainly a reasonable in-

ference, based on these facts, that "the
guy" the deceased was talking about was

the appellant.

Vickie Windham saw the appellant talk-
ing to a female inside the Super Market and

saw him c<lme outside with the same female
around 2:00 a. m. at the time the Super

Market was closing. The clothing descrip-

tion and hair length of the female Ms.

Windham saw with appellant was not un-

like that of the deceased-long dark pants,

a long sleeved shirt and hair aboul to the

collar. The deceased was wearing dress

blue jeans, a long sleeved rust colored

blouse, a black vest and had hair long

enough to cover her ears. There was no

tlisputc in the testimony as to when these

cvents transpircd.

[l'r-l2l As c:rrly rts 9:30 or 10:00 o'ckx:k

on Monrlay morning, August 2[], whcn the

| <lcccascd hatl mcrely lrccn relxrrtctl "tniss-

I ing," the aplrcllant called Eve Rominger

I an<l asked hcr for his alibi for Friday night.
t

395 SOT]TIIEIIN I'I]PORTT]R, 2d SERIES

Al4rellant even asked Ms. Rominger to say

she had "sneaked out" of the house after
her nrothcr had seen hcr come in from the
Super Market sometime after 12:30 a. m.

because "he knew that he was going to

necd an alihi." It must be remembered]
that the deceased's body was not discovered(.

until approximately 6:00 p. m., several I
hours after appellant asked Ms. Rominger I
to bc his alibi. On Tucsday or Wednesday
following the discovery of the deceased's

body Monday afternoon, appellant's mother
found the much testified to earring in the
back seat floorboard of the car appellant
harl rlriven on the night in question' Appcl-
lant's mother ha<l ncvcr scen the carring
bcfore and it matchcd exactly the earrings
the deceased's mother was sure the de'

ceased wore to the Super Market the night
shc was last seen alive. The earring was

Sarah Coventry jewelry, had only been on

the market a short time, and tho 'l'ceased

in the area. The strong inferences that the
o

the deceaied aie inescapable. Next in the

c@llant'salibi
statement to Deputy Don Lake that he had

left the Super Market "some time after
midnight" with a white female wearing "all
white clothes, jump suit, long dress" with
"shoulder-length blond hair which was of
the Farrah Faucett fluffed up style." This

female had a "Gran Prix" (the Phillips sis-

ters and the deceased were in a Gran Prix)
and ironically had to "sneak in" her house

somewhere in Forestasia. Appellant had

asked Eve Rominger as his first attempted
alibi to say she had "sneaked out" to be

with hjm. Ms. Rominger had informed ap-

pellant in their Monday morning conversa-

tion that the only blond she remembered

being around appellant at the Super Market
was a girl named Linda, Belinda, or Melin-

da. Melinda Wade Harris was subsequent-

ly located and testified that she left the

Su1rcr Market on the night in question with
Rrrcky Townscnrl, not lhc appr:llant. Mrs.

I{arris harl lcft thc Su1rcr Market with ap-

lrcllant thc prcvious wcckcnd. On that oc-

casion her hair had been "long blond," "sort
of Farrah Faucett style." And she had



7--

{er to say
)use after
from the

l:30 a. m.
going to

,ncmbered
'liscovered

., several
Rominger
\'crlnesday
,lcceased's
t's mother
rng in the
appellant
n. Appel-
re earring
c earrings
,r the de-
the night

.rring was
y been on
.deceased

been sold
s that the
,longed to
rxt in the
rnt's alibi
rat he had
inre after
:aring "all

stion with
tnt. Mrs.
I with a1r
,n that oc-
,n(lr" ttsort

I she had

HAYES v. STATE
Cile as, Ala.Cr.App.,395 So.2d 127

worn "white pants with a cream colored Several witnesses testificd at length con-
top." Hcr version of what transpired be- ccrning thcse exhibits prior to their formal
tween hcrsclf and appcllant after thcy left introfluction into evidence. The witnesses
the Super Market the previous rvcekend were Mr. William H. Lan<lrum of the De-
was not dissimilar to alrlrcllant's alibi state- partment of Forensic Sciences, Mrs. pegga
ment to Dclluty L:rke, except for the loca- Hayes, Shirley Fiel6s of the Tuscaloosa po_
tion of their indiscretions (a cemetcry ver- lice Dcpartment, Investigator wayne Mur-
sus a clubhouse parking lot) and the place
wherc they p.rtcrl coml)any (som.whcr. in phy of the Tuscaloosa county Shcriff's De-

Forestasia versus his car at the Supcr Mar- lr.rttnent and Dr' J.hn R' McDuffie' also of

ket). By all fair infcrences the "Mclinrla" the Departmcnt of Forensic Sciences'

in appellant's alibi statement was Metinda Much of thcse witnesses' testimony pertain-

wade Harris. The truth of his alihi, thus, ing to the exhibits came in without objec-

becameaoucstion@tionandwaselicitcrloncroSS-examination
the othcr cvidence. A fal.se exEnation by appellant. The summation of thcir testi-

gi6-nlry tffiilscd of any suspicious fact mony ma<le it clear beyond all reasonable

or circumstances tending to connect him doubt that the exhibits were not connected

with the offense is a6missible in evi6ence with the deceased, and in addition, provided

against him. Franklin v. State, 145 Ala. reasonable explanations as to what the ex-

669, 39 So. 9?9 (1906). Tlp-iqy-AqL--pl9p- hibits were and how they came to be in
erlv consider icting statenlq1lts ar-indi- appellant's car. The witnesses' testimony

dence may furnish basis for proof beyond exhibits did. Furthcrmore, their testimony
reasonable doubt. Royals v. State,36 Ala. was of a conclusive nature and could not
App. 11,56 So.2d 363, cert. denied, 256 Ala. have confused the jury. In other words,
390, 56 So.2d 368 (1951). Guilt need not be there could have been no misunderstanding

Ara. 147

proven to the "exclusion of every possibility among the members of the jury as to what
of innocence" to warrant a conviction. the exhibits were and how they got in ap
Burks v. State, 11? Ala. 148, 23 So. 530 oellant's car.

[l4, 15] We hold, therefore, that the for-
mal introduction of the exhibits, which was
preceded by detailed testimony concerning
the exhibits' true nature, represented no
more than the sum of the preceding testi-
mony and did not cause rev?rsible error.
The a<lmission of cumulative evidence, uuon-'f

qpon an un<lisputed fact, is not prejudicial I
error. Robinson v. State, 342 So.2d 1331

(Ala.Cr.App.19??). In addition, even the
erroneous admission of evidence is not
ground for reversal, if the same evidencc

already been admitted to the jury with-
out objection. Crenshaw v. StaLc,205 Ala.
256, 87 So. 328 (1921). And the admission
of cvirlcncc which is rnerely cunrulativc of
:rn arlnritterl fact is crror witirout injury to
the accuscd. Scnn v. State, 35 Ala.App. 62,

43 So.2d 540 (1950). See also ARAP, Rule

45.

III.
tlSl Alrlrclkrnt mlintains thu triirl court

errcrl in arlnritting Statc's exhibiLs 12

through 18. Hc conLcn<ls that the exhil-rits
were of no probative value and should have
been excluded.



14p L+. fth Lqsz W
RLhLne.tztS dur;td M\ lnbL azq [1P. lr-r.FPlcrt?

?Y,,T,I,['J,1fLT, L5-T xtx. jt\ 7$5

tives of thc other spouse, but no aflinity ceased and her husband was aclmiisible in
exists bctwcc, blood rclatives of onc prosecution for murdcr.
spouse and the blood relatives of the other
spouse. Code 1940, Tit.30, $ 55, subd.4. l0' crlmlnal Law @784(4)

Requested charge as to the test of

T
wW(LXrW
b 'zVntg.,' l

Ciru-f ?-\rid .

r ,t lialb
r,ier lo
,.rrled-

,t tbet
of ber

,r rittity
'r tuto(f
irtr()f.

c( )ttSio

r,.'d by

lround
,r, sinct
1r,.ts'e(o
i. 4.

r rrts€3i

I d06-

:t cousil
'r'ted by
,rr alr!

' grouod
: Codc

' ,"'rseq
i ,]t$

r;rputing
- rtlttoqt
r c jufof,
. in gue}
; .on aD-

r Persaai
':r bod

ti,e tdl
i,' degrtt
I, subd t

'.r'ltlt0{!
rrc jurr
-i'otrsc of
i, rd rclr'

5. Crlmlnal Law @927(5)

Whcre members of jury are separated
during coursc of trial, State has the burden
of showing that during separation jury was
not subject to contacts or influences that
may have biased their verdict and that
no injury or prejudice to defendant re-
sulted.

& Crlmlnal Law @927(l)
That one juror, being in lavatory at

time jury rvas recalled to courtroom after
tecess during nrrrrder trial, returncd to
courtroom acconrpanicd by deputy sheriff
one minute after other jrrrors did not
entitle defendaut to new trial on ground of
scparation of jury, in view of evidcnce
that tardy juror spoke to no one and that
ro attempts at communication were made
during juror's separation

7. Crlmlnal Law @404(4)
t Shotgun shell identified by deputy
theriff as the shell which he found at
rene of homicide and marked by writing

'5s initials thercon and cutting the papcr
rith a knife rvithout defacing brass cap,
ras relevant and competcnt evidence ad-
dssible in prosecution for murder as a
'luis of testimony of ballistics expert
ikntifying the gun from rvhich shell had

6red.

Homlclde Fl58(l)
'i: Declarations of accused prior to horni-
{ile, expressing ill will or menace against

deceased, are adrnissible in prosecution
ir murder, and the language used need

necessarily be a threat to take the life
deceased.

I Homlolrlo O rll-r0(l)

Tcstinrorry of dcptrty slrerilf ttr;rt sever-
weeks prior to honticirlc accusc<l ha<l

sufficiency of circumstantial evidence was

P ac.
curate and misleading and placing undue
emphasis upon such test in view of direct
testimony of accused's guilt.

ll. Crlmtnat Law @Bt4(t3),829(9)
Requcsted chargcs as to the burclen of

proof were abstract in so far as they
suggcstcd that some other person might
have committcd the homicide, in abscnce
of evidence that any other person cont-
mitted the hornicide or was implicatccl in
the killing, and refusal to give such charges
was not error, particularly where the
matter of burden of proof was adequately
covered by court's oral charge.

!2. Grlmlnal Law C=Bt4(t7)

Requested charges emphasizing the
Iaw of circumstantial evidence were prop-
erly refused in view of direct proof of
accused's guilt.

13. Crlmlnal Law 6=.914131

Reqrrestcd charges implying that de-
ceased's husband fcarcd prosecution for
hcr murdcr were improper, argumentative
and not grounded on any facts shorvn in
the evidence, in absence of evidence tend-
ing to show any motive husband nright
have had for killing deceased-

t4. Crlmlnal Law O-785(4

Requested charge in prosecution for
murder that expert testimony shotrld be

considered with caution was properly re-
fused, since it was not a correct statement
of the applicable law.

15. Crlmlnal Lnw @494, 741(4)

Iixpt.r't tcstirnorry is to be weilihr.rl lil<e

other cvidcrrcc artrl thc elfr.ct, wcight arrd
crcdibility of such tcstinrony arc qucstions

for jury, whcrr considcrcd in conncction

li

,i

&lared tliat he would gct evcn lvith dc-



?66 Aln. 68 SOUTIIERN &EPORTER, 2d SEBIES

w'ith thc othcr evitlcrrcc tnatcrial to thc

opitriort so c-rprcsscd.

Thc follolvirrg chargcs'wcre refttscd to

tlc Icttrlitttt :

I. "'I'lrc cottrt chalgcs thc jtrry that the

lcst of suflicicrrcl' of circtrrltstarrtial evi-

rlt'ttcc itt a crirttirlal casc is rvhether thc

circtunstatrccs as lrrovccl or c:tpallle of cx-

lrliLrratirxr tlpoll :tlly rcasotr:tblc hypothcsis

corrsistcttt rvith the dcfcndant's ittt.toccttcc,

arrrl, if thcy:rrc capalrlc of srrch cxpla-

n:rtiurr, then tl'rc dcfcntlarlt should be ac-

quittcd."

J. "'l'ltc cottrt chargcs thc jrrry that no

rnattcr horv strottg nury hc thc facts, if
thcl' can lrc rcconcile<l with thc theory that

sonre othcr pcrsoll rnlty havc <lone the act,

thc'n the guilt of tltc tlefctr<lartt is not shorvn

by thc frrll measure of proof whicl.r the

l:rrv rcqrrires."

L. "Thc cotrrt chargcs the jury that

the prolrlLlrility that sorttc othcr l)crson
nray ltave donc thc shootirrg is srrlllcient to

crcate a rcasotrable <Iottlrt of thc grrilt of
the <lcfendant, and thercforc for his ac-

quittal."
O. "The cottrt chargcs the jrrry that thc

cvi<.lcnce against thc clcfentlant in this case

is farty circtlrttstantial, arr<l lris itrnocettce

shorrld bc prcsrttnctl lry thc jtrry until his

grrilt is cstalrlishcd by cvitlctrce, in all the

nratcrial asl)ccts of tltc casc, bcyotld a rca-

sonable clotrl.rt, and to a nroral certaittty'"

"2 I charge 1-ou that you nlay consider

all tlrc provctl facts irr this case ill deter-

nrirtirrg' arry rvcight you lvill give the tcsti-
nrort-\' of atty rvittress in thc casc. In con-

si,lcring tlrc tcstimorly of witrless I"rank
(iilt:s, yort ntay ctlttsitler his intcrcst irl thc

corrvictiort of thc clefcndartt as clearitrg him

of a prosectttion for the killirrg of his rvife,

if fronr this evidcnce' yotl are rcasolt;tlrly

convincecl by the evitlen'ce that but for his

evirlcnce he worrld be rcasoltable sttsl>cctecl

of l<illing his rvifc."

"6. I ch;rrgc yott tltat a pitrt of tlris

t('sl irnoly is wlrat is ktl,rrvtt :ts cxJrt'rt tt'sti-
nl()n)';rlr(l is lraserl ott tltc opittirrtt of sotllc

wilrrt'ss ',vho is classcd as all exPcrt. l'hc

l:tw says that strch tcstitrrolly should be

arlnrittctl artrl cottsitlercd with caution."

Scott & Darvsotr, Iiort I):tytre, and Roy

D. I\IcCord, Gaclsden, for aPPcllant

Si (iarrctt, Atty. Gcn., and M. Roland

Naclrrrran, Jr., Asst. Atty. Gcn., and Wrn-

IL Sanrlcrs, Montgornery, of couusel, for
thc State. 

i:,
STAKIILY, Justice. l
Dn'ight I)trkc, thc appcllant, was tried

untlcr an inrlictnrcnt charging hinr with

the olfcnsc of first-dcgrcc tntrrder. Upoq

his trial hc was found guilty of murder

in thc sccond dcgrcc and his punishment

was Iixccl by the jury at 25 ycars in the

st:ttc pcnitcrttiary. On thc tri:tl hc denied.

thc olTcttsc cntircly antl o{Tcrcd an alibl
A nrotiott for ttclv trial rv:rs tlcrlicd. From

the forcgoing judgrncnt and selrtence 'the

appcllant brings arr :ippeal to this courlt

TIrc evidcnce prcscnted by the statc'

tcn<lccl to show tlrc follorving. On the night

of Dcccntl,rcr 31, 1950, J. F. Giles and hii
s'ifc N,Ic<lia Floy Giles attentled cl.rurcl'

scrviccs ncar thcir homc in DeKalb Countp

1. F. Gilcs retttrned home first for thc

night. Whcn his wif e returned horng

sornewhat after nritlnight he opened the

rloor for lter and thcy both *q111 1e slecq

in a bc,lroonl, a roorrl openilrg off the en-.

trance hall of thcir hortre' Tlte door to thir,

room was lockcd rvith a tllrlrnb latch.

'flrcy rvcrc ns':tl<ettcd by the breaking.

down of the tlor-rr an<l by tlte cttrscs of e'

man i<lentified by J. F. Gilcs as the defend-'

ant, Drvight I)uke, r+-ho cntered the rooa'

and thrcatcnc<l thcnr both rvith his shotgua

NIrs. Gilcs arosc to rctnotrstrate with tlo'
intrrrdcr. Shc atlrlrcssc<l hirn by the nanr
of Dwight. IIc <lcclarcd rvith an oath thal

hc irrtcnrlc<l to kill both of them. She tried

to push him out of the room and as,sb
did so, thc intrrrdcr 'fired and she fdl
mortally u'outtdcd, in the hall outside Sq

bcrlroonr door, ., ,'a.
I3y this timc J. F. Gilcs had seized hir..

orvn slrotgtttt, rvlriclt hc kcpt in the room,

;Lrrrl harl gortc to thc <loor. Thc assailar{
'h;rrl rrrlrv gortc otttsirlc of thc house. Hc

corrtirrrr.rl ti) cllrs(: J. F. t-,ilcs ttlr<l fircd hir '

gun lllrcc tirrtt's lttorc. Tltcn lte drove awa;

in his trrr,
but rarr
neighbor

J. F. Gi
ant as tl:,
his rvifc 1,,

COl r.',il)a)lIi

f.,ri,i;rrrt.

Ollicers
found a I

floor of tlr,
ovcr to L;r
partlllcnt r),
gtrn which
borrowcrl r',

ant arlnrittr,
the tirnc c,i

shcri{I at r

fcn<lant lri,
short time i,

Dr. C. J.
Department
expcrt in fir.
microscolrit:
inrprcssion ,

of the crilr
inrprcssion ,,
gun rvlrich
time of tht
a result of lr

at the sccnt
fronr the gur.
having had ir

A ncighb,r,
and heard :t
road 66n1jng
Gilcs' house.

There u'as
.that the deft'r
a turant fart
ill rvill torvar,
get even wrti
months previr,
arrcstcd on I I

for trading
chargc was
defcn<lalrt nrr,

.farnr shortly t I

Thc rlcfcrr,l.
thing tr.r tlo rvrr
aliLi. Accorrlr
ncar Ccnlrc,



,,ilY should be

tlr catttion."

',r1 rre, aud RoY

;'L llant.
,rrd \1. Rolarrd
( ictt., anrl Wrn'
of counscl, for

liant, was tried
,girrg hinr with
illtlrdcr. Upon

rrilty of murdcr
iris purrishrnent

25 years in the

,' trial he dcrtied
,,ffr:rcd an alibi.
.rs cicttied. From
,r il{l selltcnce the

al to this court.

,'rl by the state

rrrq. On the night
F. Gilcs and his

:tttentlcd church
,n l)eKalb CountY.
,re first for the

,: returned home
,t hc oPened the

.,rh went to sleeP

,,cuing off the en-
'.l he <loor to this

t lrunrb latch.

! lry the brcaking
,r tlte cttrscs of a
,i1..,. 

^, 
thc defend-

, , rtcrcd the room

1r rvith his shotgutu
r1r 'nstrate rv'ith the

'l hirn bY the natne

I rvith an oath that
,f thenr. She tried

L' roorn and as shc

lcrl arrd shc fc[
'lre hall outside thc

'iilrs hatl seized his
, kcPt in thc roorq
1, rr)r. The assailant
,,f thc hottsc. Ile

,. ( iilt:s arrd fircd his
'l ltcn he drove arraY

DUKE v. STATE
(lil0 ns 58 So.2tl 76{

AIa- 767

in his truck. J. F. Gilcs <lid not fire at him shotgun in his possession on the Friday
but ran inrnrcrliately to the horne of a prcceding the killing. Further according
neighlror arrrl srtrnnror.red hclp. to hirn, hc 'rvcnt to Ilirrninghanr and stayed

I J. Ir.Gilcs not only itlcntificrl thc dcfcnd- thcrc trrrtil Sun<lay rnornirrg, Deccmbcr 31,

I a,t as t5c orrc r'1o fircd thc fatal shot :rt at *'hiclr tirne he wcnt to Bradford, Ala-
I his,"ifc [^rt also rlcscribc4 tlc truck rv6ich lr:una, wherc some chicken fights were in

I corr"r1,u,,.l.rl with that ownccl by the <1c- Pros'rcss' 'l'hcre were a corrsiderable num-

I fcrtlant. bcr of peoplc at these fights and several

Ofllcers rvho investigatcd the killing witncsscs testificd to.having seen him there

for.tl :r r(>-g^ugc .troig,,n shcrl on thl in the afternoon and sorne as late as duslc

Iloor of thc h:rll. It rvas nrarkc<l an<l turncd The dcfcndant testified that he lcft the

ovcr to ballistics cxpcrts irr the State De- chicken fights at dusk, pawned a radio with
partnrcnt of Toxicology. A l6-garrge shot- a fricnd for $10, obtaining more whiskey-
gun which thc dcfen<lant admitted he had he had alrcacly been drinkirlg during the

borrorvcd from a frienrl and which <iefend- day-and startcd for home in his truck.

ant a{rlittedly |a{ in his possession during According to him he stopped and slept in

thc tirnc of the killing', was scizcd by the his truck and finally arrived in Gadsden

sheriff at the home of its owner, the de- about daybrcak'

fen<lant having rcturncd it there just a The last person to see the defendant on

short time before the seizure by the sheriff. this night and to corroborate the story of
Dr. C. J. Rehling, Director of the State the defendant was Charlie Green. He

Department of Toxicology and a qualified testified that he was out coon hunting and

expert in firearms, testified that he made a the defendant drove up in his truck about

microscopic e-xarnination of the firing-pin one o'clock a. m. and asked him where he

impressiorr on the shell founcl at the scene could obtain some whiskey. The witness

of the crinrc and compared it rvith the tcstified that defendant appeared to be

inrprcssion on two test shells fired from the drunk. No witness was produced by the

gun which the dcfendant had during the defense who saw the clefendant later that

. tinre of the killing. He showed that as night. The time of tlre shooting was not

l a r...rlt of his exanrination, the shell found exactly fixed, but it occurred about 2:3O

| ,t th. sccnc of the killing had been fircd or shortly prior thereto when Sheriff Gar-

I fronr the gun which thc <lefendant admitted rett testified he arrived at the Giles'home.

l_lavinS 
ha<l in posscssion. In rcbuttal thcre was testimony olfcred'A ncighbor of thc Giles heard the shots by the state of several witncsscs who had

and hcard a truck or car p:rss by on the attended church services which Mr. and
road corning from the dircction of the Mrs. Giles had attendcd. These witncsses
Giles'house. testified that thcy sarv the defenrlant stancl-

'l'here was evi<lence tending to show ing outside the chrrrch that night betwcen

.that the clefcn<lalt, .rvho had fornrerly bccn elcven attd twelve o'clock and one had

a tenant farmer on thc Giles' farm, bore cxchangcd rcmarks with the defendant at

ill rvill torvard thcrn and hacl threatened to that time.

get even rvith them. Sonrc two or thrcc
months prcvio.s to the kiling, he had bcen ,,lll".l;,t,fl::':li j;i.:tjil::"+"1::
arrcstc(l on the comp'laint of J. F. Gilcs W. payto,, is a cousin by consangui,ity
for trading mortgaged property. Thc to the son-in-law of the deceascd person,
chargc was apParently droppcd but the Mrs. I{c4ia Floy Giles. As a matter of
defcntlant movc<l away from the Gilcs' fact Trar.is W. payton is a first corrsin
Iarm shortly thcrcafter. of thc son-in-law of the deceased, I\{rs.

Thc <lcft,rrrl;rnt d<'rricd tlrat he harl arry- J\{crlia Floy Gilcs. UIr<lcr suLscction 4,

thirrg to <lo rvith thc killirrg arrrl olTt-rcrl an $ 5.5, Titlc 30, Code of 19'10 a ground for
alilri. Acr:orrlirrg to hirn hc lcft his horrrc challcngc of thc prospcctive juror is that
near Ccnlrc, Alabama, rvith a borrorvcd hc is conncctcd by cons:rnguinity witlrin

Il',

:i



I

i

I
I

;

I

I

in his trrrck. J. F. Cilcs clicl not fire
but r;rn irrrrrrcrliatcly lo tlrc hornc
ncighlror ;urrl su11'rrn<lncrl h<:lyr.

J. Ir. (iilcs rrot orrlf irlt:rrtificrl tlrc rlc[cnd-
ant as thc onc u,lro firccl the f:ital shot at
his rvifc but also <lescribcd thc truck rvhich
corrcsporrded with that owncd by the dc-
f enrlant.

Ofliccrs rvho invcstigatcd the killing
fouu<l a 1(i-g;Luge shotgun shcll on the
floor of the hall. It rvas markcd and turned
ovcr to ballistics exJ)crts in thc State De-
partment of Toxicology. A lG-gaugc shot-
grrn which thc dcfcntlant adnrittcd he had
borror,,'c<l from a fricn<l and which dcfend-
ant adnlittediy had in his possession during
the tirnc of the killing, was seizcd by the
sheriff at the home of its owner, the de-
fcnrlant having rcturncd it there jrrst a
short time before the seizure by the sheriff.

Dr. C. J. Rclrling, Director of the State
Departnrcnt of Toxicology and a quali6ed
expert in fircarms, testified that he madc a
microscopic oratnination of the firing-pin
impression on the shcll found at the scene
of thc crimc and conrparc<l it with the
imprcssion on two test shclls fired from the
gun r.r'hich thc defend:rnt had during the
time of thc killing. IIe sho*'cd that as
a result of his exarnination, the shell found
at thc sccnc of the killing had becn fired
from the gun u'hich the defendant adlnitted
havirrg had in possession.

'A ncighbor of thc Giles hcard the shots
and hcarrl a truck or car pass by on the
rbad conring from the dircction of the
Giles' house.

There rvas cvidctrce tcntling to show
,that the dcfendant, rvho h:r<l fornrerly becn
a tenarlt farnrer on thc Giles' farm, bore
ill will torvard thcrn and had threatencd to
.get everl rvith thcnr. Sonre trvo or three
months previous to thc killing, hc had been
arrestctl on the conryrlaint of J. F. Giles
Ior trading mortgagcd l)roperty. Thc
.charge was apJ)arently dropped but thc
defenrlant movc<l away from the Gitcs,
.Iarnr slr,rrtly thcrcaftcr.

Thc rlcft.rrrl;rrrt <lt'rrierl th:rt hc ha,l 111y-
.thing to tlo rvitlr thc l<illirrg lrrrl ollcrcrl arr
alibi. Accorrli:rg to hirn he i<'ft his hornc
near Ccnlrc, Al:rlxtrn;r, rvith a borrowt:cl

DUI(E v. STATE
Ciio ns 68 So.2rt 76,1

at him sll()trirur in his possession on the Friday
of a prcccrlirrg the killirrg. Iiurthcr accor<lirrg

lo lrirrr, lrt' rvclt to llirnrirrghllnl alld stayed
thcrt: rrrrtil Srrrrrl:ry rnorrrirg, Dcccntbcr 31,
at rvhiclr tinre hc wcnt to llradford, Ala-
l;arna, wherc some chicken fights were in
I)rogrcss. There were a considerable num_
Lcr of pcople at thcse fights and several
u'itncsscs tcstified to having sccn him there
in tl're alternoon and solne as late as clusk

l'hc dcfcndant testified that he lcft the
chicken fights at dusk, pawned a radio with
a fricnd for $10, obtaining nrore whiskey-
he had alrcatly bcen drinking during the
<lay-and startcd for home in his truck.
Accortling to him he stoppcd and slept in
his truck and finally arrived in Gadsden
about daybreak.

The last person to see the defenclant on
this lright and to corrol)orate the story of
the dcfendant was Charlie Green. He
tcstifie<l that he was out coon hunting and
the defendant drove up in his truck about
one o'clock a. m. and asked him where he
could obtain some whiskey. The witness
tcstified that defendant appcared to be
drunk. No witness was produced by the
defcnse who saw the defendant later that
night. The tirnc of t_he shooting was not
exactly 6xed, but it occurred about 2:30
or shortly prior thereto whcn Sheriff Gar-
rett testificd he arrived at the Giles' home.

In rcbuttal there was testimony offcre<l
by the state of several witrrcsses who had
attendcd church scrvices rvhich NIr. and
NIrs. Giles had attcnrled. Thcse witncsscs
testi6ed that thcy sarv the defendant stancl-
ing outside the church that night between
elcvcn and trvclve o'clock and one had
exchanged remarks with thc defendant at
that timc.

tll I. A grourrd for the motion for
a ncrv trial is that one of the jurors, Travis
W. Payton,.is a cousin by consanguinity
to thc son-in-law of the deccascd pcrson,
I\{rs. Xlcrlia Irloy Giles. As a nrattcr of
fact'lravis W. Payton is a first corrsin
of thc son-in-l;rw of the dcceasccl, I\{rs.
I\{crlia Floy Gilcs. flrrrlt:r sulrscctiorr 4,
g .5.5, f itlc 30, Code of 19.10 a grourrd for
clrallcrrgc of thc prospcctivc jrrror is that
hc is cr-rrrrrcctcd by corrsarrguirrity within

Ara- 7c7
,,rulrl be

Ir,tn.t'

,rr,1 Roy

Ilolantl
',1 Wrrr.

rscl, for

. :r s tried
,irn with
r. Upon
I ururdcr
rrrishrnetrt
.rs in the
lrr: dcnicd
aIr alibi.
rl. Frotn
!r'rrce the
iris court.

t lre state
, the night
s an<l his
,l clrrtrch
l!, Countl'.
t for the
;,, rl home

l,crrcd the
1 .1e sleep
,li the cn-
,()r to this

':rl c'h.

lrrcakirrg
,'l sas of a

i,, rlcfend-
' tlre room
:s sltotgttn.
,' rvith the

tltc nanre
rr oath that

She tried
rn,1 as she
I she f cll,
,,rrtside the

scized his
, thc room,
(':Iss:Iilarlt

!r, rus('. I{e
:rrl lircd his
,lrovc arva,

1

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ii!iri'
1!jlrti
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a.

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AIa.70s 58 SOUTEEI{,N R,EPORTEB, 2d SE&IES

thc 9th rlcgrr:c. It is obvious that the tlc-

ccascd an<l tltc jttror are not rclatld by

corrsaugrriuity at all, bccausc tltcre is uo

blood rclatiortsl'rip bctrvcctt tltc trvo. Vol.
8A, Words and Phrases, pagc 177.

12-41 A furtlrcr grottnd for the tnotiotr

for rrcrv trial is that since thc jttror, Travis
W. I'ayton, is a first cousin of thc son-in-
larv of tlte <lcccascd, hc is brorrght by

aflirrity u'ithin thc dcgrce of kinship sct

or.rt in srrbsection 4, $ 55, Title 30, Code of
19 l0 ancl thercforc rvas sr.r'lrjcct to challcngc

;rs a juror. Subscction 4 of this scctioll
provi<lcs tltat persons nlay lrc clrlLllcrrgctl

u,lrrr arc conncctc<l by ailinity u'ithin thc

.5th dcgrce . (conrputirtg according to thc

rrrlcs of the civil law) rvith the pcrsotl

allcgccl to be injured. But thc dcccasccl artd

thc jrrror arc uot rclated by aflinity withilr
thc 5th dcgrec. The civil law method of
cornputing dcgrees of kinship is to begin

the corrtrt with one of the persons in qttes-

tiorr and procced tlp to the common an-

cestor antl thcn clown to the othcr pcrson,

calling it a clegrcc for each pcrsort both

:tsccncling arrd dcsccnding. The nrtmlrcr

tlrus corrnted expresses the degrce of kin-

ship. I)anzcy v. State, 126 Ala.15, 28 So.

6()7; Os,cn v. State, 255 lvla. 354, 5l So'2d

5-+1. It is obvious that the dcceascd an<l

thc jrrror are not related *1r1rin ths .5th

dc(rce. In fact they are not related by

allirity at all. Thc relationship of affinity
is that lrctwcen olle spotlsc of a subsistirrg

rn:Lrriagc-in this case Mrs. I\Iedia Floy
Gilcs, the deceasetl,-and tlre blood rela-

tivcs of the othcr spouse. Kirby v. State,

89 Ala. 63, 8 So. 110, l1l; Lorvman v.

Statc, 161 t\la. 47,50 So. 43; Cambron v.

Statc, 227 Ala. 575, 1.51 So. 443. Thc

rclationsltip betrvccn thc partics here in-
volvcd is a more rcnlotc one, viz., bctrvcen

thc kinsmen of trvo pcrsons marricd, the

darrgtrtcr of thc ticccascd l\'ornan in this

case artd thc first cotlsirt of the datlghtcr's

husbancl. The rulc was statctl in thc case

of Kirby v. State, supra, as follorvs.

"'A{finity properly mcans the tie
rvhich arises f rom marrilrgc lrctrvi:rt

the hrrsbaud and thc blood rclativcs of

thc lvife, and betwccll the rvife and thc

blood relatives of the husbarrd. But
thcre is no aflrriity bctween the blood

rclatives of the husband and the blood

rclatives of the wife.' The juror Bry- .

ant lrcirrg a cousin of the step-father.
of thc dcceased was rclatcd by aflinity
to thc mothcr of deceased, but bore no

rclation to dcccased hirnself, and was

a colnpetellt juror."

II. It is contended by the appellant that

there rvas a scparation of the nrernbers of
thc jury during the course of the trial.
1'hc jury ha<t 'bcen excuscd for a short

rcccss and had bcen conducted to the jury
roorn dorvrt the corr'idor from the court

ror.)ln. Whcn court was ready to resume'

trvo deputy sheriffs went to the jury roorn

to conduct the jurors back. Eleven of
the jurors returned with one of the depu-

ties. The twelfth juror was in a lavatory

or toilet rvhich operts off of the jury room.

The othcr deputy sarv that one jtlror was

not with the others, told ,him to hurry up

bccause the othcrs rvcre leaving and waited

for hirn at the door of the jury room.

Thcy arrivcd a nrinute or less after the

other jrrrors. The twelfth jurot imme-

diately took his seat in the jury box. ,The

dcputy shcrilf who had remained with this

jrrror rvas called to the stand togcther with

thc shcrilf and one of the dcfense attorneys

who obscrvcd the incident. This dcputy

shcrilf tcstihed that thc juror spoke to no

one anrl that no attempts at communicatio

wcre made during the juror's separation.''

t5, 6l Unrlcr these circumstances thc

state must shorv b1' sumcient evidence that

thc jury during the separation was'nd
sul-rject to cotrtacts or influcnces that may

have biased their verdict. In other words,

the burden rests on the state clearly b
show that no injury or prejudice to thc

dcfenrlant resultcd. Mitchell v. State,.2'l{

Ala. 503, 14 So.Zd 132; Nelson v. Staq

253 Ala. 246, 43 So.Zd 892. We considcr

that the statc by the proof sustained tlt
bur<-lcrr which restcd on it with refereocr

tr.r tltis prarlicular incideul

s,

a'
ti
a,

il'
il
tt:
ti,
Sr

,Sr

lil;r



,fc and tlrc
blud. llut
rr rlrc llloorl
r tlte bLrod

' jtrror IlrY-
.t r,p-fathcr

,l by a{linitY
lrrtt ltore tttl
li, aud rvas

appellant that
ilrc rnenrbers of
, of thc trial.
, rl for a short

:, J to the jurY

from the cottrt
';r,ly to resullre.
r the jurY rootn

,'k. Elcvcn of
.ue of the dePu-

as in a lavatorY
i ,1re jurY room.
I one jttror was

,rirn to hurrY ttP

,r,. ing anrl waited
the jury room.

,r less after the

th juror inrtne-
,' irrry box. The

rrr:rincd rvith this

rnrl togcthcr rvith

,lcicnsc attorlleYs

itt, This d':PutY

.,rror sPokc to no

, Lt colnnrtlllicirtion
or's scparation.

ircttmstances the

it'nt evidcncc that

rlrration was not

,llrt,nccs that maY

. ln other rvords,

() state clearlY to

prcjudice to the

,:1rcl1 v. State, 2-l'l

: Nclson v. Statg
;:92. We consider
.r,,,rf sttstained the

it with refcrence
t

DUKE v. ETATE
('llr, r,r 5,S Nrr.irl 7{i,l

7$Cr.. Lz
\\a

31

As

sl'
fvtd
vor
A{al

I
I

t71 III. A shotgun shcll u'as oll ctcrl ant. It is confuscd, inaccurate and mis-- .

in evidcncc by the state arrd adnrittcd, rlc- lcacling. It places undue emph".i, ,ponl]
fendant's objcction to the a<hnission of the a tcst of thc suflicicncy of circumstantial I
shotgun shcll bcing overrulccl. The statc's cviclcncc, rvlrcn thcre was in this caserlirect i\
rvitness, Deputy Sheriff M. H. Chadrvicl<, te$llrAlry of the dcfcnd"nt'r gritr t&illl
idcntified the shotgun shcll which he had v. Statc, 170 Ala. 10, 54 So. 428. I
olrtaincd and markcd at the scene of the 'Y
crirnc. This shell, so identified, was ac-
ccptcd in cvidcnce ovcr thc dcfendarrt's
objcction. ll'he shcll was rclcvant arrd com-
pctcnt evidellcc. 'I'he nrarl<s on the br:rss
cap of the shell left there by the liring-pin
formed the basis of the testirnony of the
llallistics expert that the shell had been
fircd by the gun in question. There was
objcction that thc mark put on the shell by
thc dcputy sherilf changed its condition
from that in which it had bcen Tound.
According to the testimony of the deputy,
however, he merely wrote his initials on
the shell and cut the paper part with a
knife. IIe did not in any way deface the
brass part of the shell. It was oniy this
portion of the shell which was used by the
expcrts in making their identification. The
particular shell is before this court and
has bccn inspected. It appears to be ob-
viorrs that the marking on the shell was
placed tlrcre merely for the purpose of
identification.

[8,9] IV. Complaint is made of
overruling objections to the testimony
givcn by Dcputy Sheriff Chadrvick con-
cerning a threat made by the defendant
several wceks prior to the killing. In sub-
stance tlre testimony shows that defcndant
sairl, "that he would get even with I\[r.
and Mrs. Giles if it was the last God damn
thing he ever done." Declarations of an
accused prior to the homicide, ex,pressing
ill will or mellace against the deceased,
are atLnissible in evidence. The langrrage
used need not necessarily be a threat to
take the life of the deceased. Drake v.
State, I l0 Ala. 9, 20 So. 450; Knight
v. State, 160 Ala. 58, 49 So. 764; Husch v.
state, 2ll Ata. 274, 100 So. 321. There
was no error in this ruling.

[0] V. Thcrc was no error in re-
fusing Charge I rcqtrcsted by the defend-

68 So.2d-{9

[11] Charges J and L involve thc bur-
dcn of proof neccssary for conviction.
Tlris mattcr was arlcqu:rtcly covcrcd in
thc court's oral chargc. liurthermorc thcre
was no evidence that any other person

committed the murder or was implicated
in the killing. Accordingly these cfuarges 1

in making this suggestion are abstq,zct,l
owcns v. state, zts ii^."i2,'iir'ffi4,cv\
Thcrc was no error in refusing Char-ges I
JandL t

Uzl There was no error in refusing
either Charge O or P. T.hese charges em-
phasize the law of circumstantial evidence
although, as hcreinabove pointed out, there
was direct proof of defendant's guilt.
McCoy v. State, supra.

[13] Charges 2, 3 and. 4 in their im-
plication that Frarrl< Gilcs, thc husband of
the deceased, feared prosecution of hirnsclf
for the murder, rvcle irnproper, argulncnta-
tive and not grounded on'any facts shown
in the evidence. No evidence was intro-
<luced tending to show any motive or
reason that Frank Giles might have had
for killing his wife.

It is enough to say of Charge 5 that
it was fully covered by the court's oral
charge.

[14, l5l Charge 6 is not a correct state-
nrent of thc law applicable to expert testi-
mon)'. Such testimony is to be weighed
lil<e other evidence. Ilockenberry v. State,
246 Ala. 369, 20 So.2d 533. "The effect,
weight, or credibility of such evidence are
questions for the jury, when considered in
conncction rvith the othcr evidence matcrial
to the opinion so expressed." Crawford
Johnson & Co. v. Pryor Motor Co., 219
Ala. 108, 121 So.3&3,389.

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