McMurtrey v. State Court Opinion
Working File
February 18, 1969

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Case Files, Bozeman & Wilder Working Files. McMurtrey v. State Court Opinion, 1969. d5ba5e98-ee92-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f1564f02-16b4-420e-8afb-42337ca22f60/mcmurtrey-v-state-court-opinion. Accessed July 11, 2025.
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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. t i,i I t IiI $ ; 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. I l; I llr I I il ili 1, ljr "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. :1 i, tl ll li li l{ ir I I I I I I l I l I I I I I