McMurtrey v. State Court Opinion

    4L4 Ala. 219 SOUTEER,N

Jamcs wllllam McMUFTREY

Y.

STATE'

5 Dlv. 712'

Court of APPeals of Alabama'

Felr. 18, 1069'

REPORTER, 2d SERIES

despite defendant's contention that ht

should have been allou'e9. t.lt'lify P
facts relating to or shedding light upol

his PhYsiological condition'

3. Crlmlnal Law @=740

Defendant's sanity or insanity is r
question of fact to be determined by jury,

in light, if necessary, of testimony of

exPerts.

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Defendant was convicted in the Cir- 
4. crlmlnat Law G=50 :

cuit Corrrt, Lee County, L' J' Tyner' J'' r--^-;.|,.ro imnrrls
of burglary in the 

"tona 
'dtgt""' 

"t'd 
Irresistible impulse is not an excuL ' '

he appealed. The Court of Appeals' Price' or defense for crime' unless it' is inducotl '. " i

J., held that refusal to peimit defense by 
"n "ttuut $isga-1e of th9 -il9..---:;+=l----

'aounral to see anr-I examine memorandtlm t

used by police officer to refresh his mem-

ory a,rrits time he testified that he saw walker & Hill' opelika' for appellanL

i::":1Tl#;'fl::H:I1?."x'.x;.:::},u^.oonaldGallion,Atty,Gen.,andWal.
companion constituteQ-reversible error' and ter S' Trrrner' Asst' Atty' Gen'' for ttn

fact that defendant, tettifying "t a wit- State'

,,.r., "a.itt.<l 
that he broke into pharmacy . ,:,--

;; ;;, render error harmless' PRICE' Presiding Judge'

"0. Were they

"r\. Yes, sir.

"O. I[ay I see

..},IR. WRIGH']
Your Honc
sonal file,

..THE COURT:

. IR. WALKEI
cePtion'

"(J. These wer

rvere refet
_.-___,_ rime_when

";\. I referred
time, yes,

"{1. To refresh

".\. Yes, sir.

"1J Norv, rvher

rrp ?

".,\. They s'ere
ing ?

"!.). .,\t a time
fresh in 1

".\. Ycs, sir."

I)cfense counsel
lnsJ)cct the notes rr

fresh his recollec
r le rr i crl.

tll Thc court'
fcnsc corrnsel to
nte ntor;rntlttm ltset
stanrl to refresh
rcvcrsilrle error.
.,\1a...\pp..302, l0(
cascs citccl in the
Inrlrc;tchment of \\
Itt(i), pagcs 2*{,

'l'hc fact that t
;r. ;r $, iint'SS, :trln.

|': r'ttr;t,.,r.. ,1,,
t:,,lr:t'];,it

Reversed and remanded'

l. Crlmlnal Law €=l l70t/z(l)
Wltnesses @256

Refusal to permit defense counsel to

see and examine memorandrtm used by

police of ficer to ref resh his memory during

ii.. t" testified that he saw defendant in-

side pharmacy ri'ith a crorvbar and that h.e

apprehended clefendant's companion constl-

tt ied rerersible error, and fact that de-

fendant, testifying as a '*'itness' admitted

that he broke into pharmacy did not render

error harmless.

2. Crlmlnal 1-1Y @=l I70(l)

Where defendant testified that he was

addicted to narcotics and admitted that he

broke into establishment for purpose of ob-

tairting narcotic drtlgs, srtstaining State's

objeciion to strbserluent qrrestion asked of

A"i.ua^nt by tlef e:rse cortnsel' namcly

rvhethcr ltc trrrtltl rc;ist tcnlptlttiort of t{ct-

trrtg <lrtigs if sotnccLtrc lt:rtl ttot 1r'hl siclr1l-r'

prrllc,l llirlr awa)'' \\'lls tl('t i c\'('rsilrlc ('rr('r'

The appellant, James William Mcl\tur'

trey, r.'as convicted of the offense of bur'

glary in the second degree, and was scn'

i"r..a to the penitentiary for a term ol

six 1'ears. ,

The State's evidence tended to shoa t

that Clark Pharmacy, in Opelika' Alabarnr'

was broken into and entered on the nigtt

of Jantrary 17, 1967' Defendant and ur

other man rvere apprehended inside th
pharmacY.

Lierrtenant Charles Beasley, of the Opli'

ka Police Department, testified he saw th 
;.

defendant inside the pharmacy with a cror

bar in his hand and that he apprehctdcll ;
Wutt., Franks, def endant's comPanicG I
During the cross examination of Lieutari '. ';

"Q. Lieutenant Beasley, I noticld rr

You were testifYing that You -rflr
referring to ;'; notes' W.I :

these some Irotes that Yot: lt"!

matle shtlrtlY aftcr thc cvctlt'

' .\. \'cs. sir.



v. rr crc Lllc) tnaoe l)y ).ollrselt r

"4. Yes, sir.

"4. I\[ay I see the notes ?

"MR. WRIGHTT We object to that,
Your Honor. That is his own per_
sonal file, there.

"THE COURT: Sustain the objection.

"]{R. WALKER: We reserve an e_\-
ception.

"0. These were the notes that you
were referring to from time to
time when you were testifying?

"4. I referred to them, I think, one
time, yes, sir.

"0. To refresh your recoltection ?

".{. Yes, sir.

llcnef rcl<l r.. State, supra; people v. Gezzo,
307 N.Y. 38-5, 121 N.E.2d 380.

The defendant pleaded not guilty ancl
not guilty by reason of insanity. In sup_port of his plea of insanity, defendant
introdrrced medical testimony to show that
he rvas a narcotics addict.

The defendant testified he was addicted
to narcotics and admitted that he broke
into the establishment for the purpose of
obtaining narcotic drugs. He wai asked
this question on direct examination:

"Q. Mr. tr{ctr{rrrtrey, if someone had not
physically pulled you away, could
you resist the temptation of getting
those drugs ?,, .

t2) Defense counsel argues as reversi_
ble error the srrstaining of the State,s ob_
jection to this qrrestion. The argument is
that defendant shonld be-aflowedrto .,testi_

fy to the facts relating to or shedding light
rupon his orvn physiological condition.;

13] This contention is rrntenable. In
Parsons v. State, gl Ala. 572, 2 So. gll,
the court held that a defendant's ,"nity or
insanity is a question of fact to be deter_
mined by the jury, ,,enlightened, if neces_
sary, by the testimony of experts.,, The
above qrrestion \\.as invasive of the prov_
ince of the jur1..

t4] Furthermore, Alabama does not
recognize "irresistil>le impulse,, as an ex_
cuse or defcnse for crime, untess it is
in<lrrced by an acttral disease of the mind.
Thompson v. State, 23 Ala.App. SZg, l}g
So. 461 ; Johnson r,. State, 43 Ala.App.22l,
187 So.2d 281 ; Rarborrr v. State, 262 Ala.
D7,78 So.2d 328; Wingard v. State, ZlT
Ala. .{88, 25 So.2d 170.

In view of the reversal of the cause
for the reason stated other questions raised,
rvhich u'ill probalrly. not arise in the event
of another trial, rvill not be considererl.

Revcrsed and remanded.

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"0. Now, when rvere those notes t),ped
rrp ?

".'\. They were typecl up the next morn_
ins\

"0. At a time when all of this rvas
fresh in your memory ?

".\. Yes, sir.,'

l)efense counsel renerved his request to
irrspect the notes rrsed l.ry the witness to re_
f resh his recollection. The request was
rlen i e<1.

tl] The court,s refusal to permit de_
fense counsel to see and examine the
ntemorandnm rrsed by the rvitness on the
stanrl to refresh his memory constituted
retersible error. Benefield v. State, 39
r\Ia.,.\pp. 302, tO0 So.2d 3.31. Seillso
cases cited in the annotation ,,Discoverv_

lt,ulg"h-:l,of witnes_s,'d-.1-R-3r1l,-3ec.
I ( )( i )llGes-Z{d -21i, 

z+a.

The fact that the defendant, testifying
as a rvitness, admitted that he broke into
thc Pharmacy, does not render the error
harmless, as claimed by the prosecution.

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