Stallings v. State , 33 Ala. App. 1 ( 1945 )

Upon further consideration of all the facts in this case, and also the unusual and prejudicial manner in which the prosecution was conducted, we have reached the conclusion, and so hold, that error prevailed in the action of the court in overruling and denying defendant's motion for a new trial.

It affirmatively appears from the record that there was no dispute or conflict on the question that the defendant shot and killed the deceased with a single barrel 12 gauge shotgun loaded with small bird shot. It was also admitted that the wound upon deceased was in his face on the right hand side and that no other wounds were upon the body of the deceased. Defendant undertook, as he had the right to do, to justify the act complained of for that he fired the shot in defense of his own father who at the time was being murderously attacked by deceased who was armed with a large switch blade knife, and was in great danger of being killed, maimed or seriously injured by the deceased. (The switch blade knife above referred to was introduced in evidence and sent up for our inspection. By actual measurement it is 7 inches long.) In connection with such defense the defendant testified, and also offered other testimony tending to show, that at the time of the fatal shot his father was wholly free from fault by word or act, in provoking, or bringing on the difficulty and that on account of the suddenness and unlooked for attack his father had no reasonable mode of escape without greatly increasing his danger. Such defense as stated, is admissible under the law. 11 Alabama Digest, Homicide, 122.

The expression above, "unusual and prejudicial manner in which the prosecution was conducted," has reference principally to the so-called expert voluminous testimony which related solely to an undisputed fact, and about which there was no controversy. Expert testimony is permissible in some cases where the matters involved are in controversy, or highly technical, and are such that the jury cannot be assumed to be able to form a correct opinion of their own. But such testimony is not necessary or allowable unless the case involves a subject of special technical science of which the trier of the facts (the jury) is not presumed to be specially informed. The purpose of such testimony is to assist the jury in arriving at a conclusion. But expert testimony is not admissible on matters of common experience or understanding requiring no particular skill or fitness, and from which inferences of fact the jury are as capable of drawing and deciding as others. In other words, the rule is, that where a court or jury can make their own deductions, they shall not be made by those testifying. In all cases therefore where it is possible to inform the jury fully enough to enable them to dispense with the opinions or deductions of witnesses from things noticed by themselves or described by others such opinions or deductions should not be received. It needs no expert witness upon material matters of a trial where such matters are admitted and about which there is no semblance of controversy.

In this case the record discloses that the admitted killing of deceased by appellant happened on the 12th day of April 1944, and that several months thereafter, towit: On the 31st day of October 1944, the body of deceased was exhumed and an autopsy held by State witness, Dr. C. J. Rehling, who testified as an expert, and was permitted over the objection of the defendant to state to the jury all that he saw and did in this connection. All this in the absence of the defendant. He exhibited several pictures taken by him on that occasion. Said pictures, or photos, were of the locus which witness testified were pointed out to him, and of the body of deceased. From the record we quote a portion of the examination of this witness and his answers:

"A. We proceeded to the cemetery, for exhumation.

" Q. There, Doctor, did anyone point out the grave of Lawrence Rogers to you? A. Yes.

" Q. Who? A. Mr. Rogers, the father of the deceased.

"Q. Anyone else? A. Yes. The coroner and mortician.

"Q. Mr. Turner? A. Yes, sir.

"Q. Doctor, was the body exhumed at that time? A. It was.

"Q. Did you perform an autopsy on that body? A. Yes, sir.

"Q. An examination? A. Yes, sir.

"Q. Will you tell the jury the nature of the work there, Doctor — what you did. A. I examined the body for violence and the evidence of violence was particularly centered about the face. The tissue of the body was badly decomposed but the skeleton structure was fairly intact. The entire right cheek area of the face was missing, including part of the right eye socket, a portion of the right nose structure and a portion of the upper tooth structure, with a hole there some two and a half inches in diameter, commonly described as a rat hole type of wound, and the shotgun charge with the wadding almost intact, was found in the upper mouth area, back against the spine in the section that corresponds to the soft palate and I got some shot, some stray pellets had scattered over the face so as to leave their markings on the upper right forehead area and the right ear area and down on the lower right chin. All of these pellets struck to the right of the median line of his face and there were no markings to the left side. The direction of fire of the charge was at an angle, angling roughly forty degrees or so from the median line of the face to the right, almost horizontally into the face. The skull was fractured over the right socket, right eye socket area up for a distance of about three and a half inches. The floor of the cranium or roof of the mouth was shattered; the spinal column, which constitutes the upper back portion of the mouth, was crushed; several of the upper jaw teeth were out and missing, the entire right jaw bone being missing from that point, and that cavity had been filled with mortician's cosmetics that I removed. There was no evidence of violence to the rear of the skull or to the neck.

"Q. In your judgment, based on your experience, what was that absence of flesh due to? A. The decayed flesh was over the face except these damaged portions which had been reconstructed by the mortician, but the decay damage was present over the balance of the face, so badly decayed you could not hardly recognize. * * *

"Q. I believe you said you found some wadding? A. Yes, sir.

"Q. Where did you find that? A. In the upper region of the posterior mouth.

"Q. Could you tell from that wadding the gauge of the gun that fired the shot? A. Yes, sir.

"Q. What was it? A. A 12 gauge.

"Q. Could you tell from your examination the size of the shot? A. I could only give an estimate on that due to the mutilated condition of the pellets of the charge. They were around Number six to number seven, but I can't say definitely.

"Q. Doctor, did you take any pictures there with respect to the line of fire? A. Yes, I took several.

"Q. Did you take any pictures, Doctor, that in your judgment would reflect the line of fire of the shot —?

"Mr. Powell: The undisputed evidence is that the man was shot on the right hand side of his head and I don't understand the purpose of going into all of this, if the court pleases.

"Q. Doctor, I show you this picture. (Hands witness picture) Will you take your pencil and point out to us — you took pictures of the body of Lawrence Rogers at the time of the exhumation or shortly after, didn't you. A. Yes, sir.

"Q. And from that examination you determined the facts you have just stated? A. Yes.

"Q. Doctor, what was the pattern of fire? A. The pattern of fire was primarily an intact charge in the middle of the pattern. Most of the pellets went in as a mass, as near a unit as it is possible. There were numbers of stray pellets around that gave an overall measurement of approximately five and one half inches, from the forehead down to the lower pellet on the jaw bone.

"Q. Doctor, that was 12 guage waddings you found there, weren't they? A. Yes, sir.

"Q. Doctor, are you able from that your examination, that examination, and from your knowledge and experience to estimate the distance from which that gun was fired? A. Yes.

"Q. In your best judgment, what was the distance? A. Approximately ten feet or so.

"Q. Do you mean that distance from the muzzle of the gun or the butt? A. From the muzzle.

"Q. From the muzzle of the gun? A. Yes, sir.

"Q. Doctor, have you ever seen these clothes in this box before? A. Yes.

"Q. Did you receive them in this box? A. I did.

"Q. Do you know who sent them to you? A. The clerk. Isn't the label still on there? Mr. Taylor.

"Q. Do you know when you received this clothing? A. I received them yesterday at the laboratory in Auburn.

"Q. Have you made any analysis of these clothes? Yes. I examined the blood stains on the shirt particularly.

"Q. The blood stains? A. Yes.

"Q. What was the result of your analysis? A. Human blood.

"Q. It is unquestionably human blood? A. Yes."

The clothes worn by the deceased at the time he was killed, have also been certified to this court for inspection.

In the case of Boyette v. State, 215 Ala. 472, 110 So. 812, our Supreme Court (speaking through its Chief Justice Anderson) said:

"The trial court should not have permitted the introduction of the clothing of the deceased, as it shed no light whatever upon any material inquiry in the case, and was but the presentation of an unsightly spectacle calculated to prejudice the jury. There was no dispute as to the location of the wounds or the character of same on or about the head, and the bloody clothing of the deceased shed no light upon any controverted fact. The clothes worn by the deceased should never be offered in evidence unless they 'have some tendency to shed light upon some material inquiry.' Louisville N. R. Co. v. Pearson, 97 Ala. [211], 219, 12 So. 176; Alabama G. S. R. Co. v. Bell,200 Ala. 562, 76 So. 920; Rollings v. State, 160 Ala. 82,49 So. 329; Crenshaw v. State, 207 Ala. 438, 93 So. 465."

In Blackburn v. State, 22 Ala. App. 561, 117 So. 614, this court said:

"Witness cannot give expert opinion as to relative attitude of deceased to instrument or person inflicting the fatal wound, since this is inference to be drawn from the facts, and is for the jury.

"In prosecution for murder, in which it appeared that deceased was shot in head and fell on floor of storehouse testimony of state's witnesses that, after body of deceased had been removed defendant took some sand and poured it over deceased's brains lying on the floor, stirred it around with his foot, then took it up in a shovel, and threw it across the street, held error. * * *

"The court should not have permitted this line of inquiry. The act of defendant, if true, was not a part of the res gestae, shed no light upon any material inquiry, and was but the presentation of an unsightly and gruesome spectacle calculated to prejudice the jury."

Without prolonging this discussion, we reiterate, from the facts of this case and the conduct of the trial aforesaid, we are clear to the conclusion that error prevailed in the action of the court in overruling and denying defendant's motion for a new trial. Judgment of affirmance set aside.

Application granted. Reversed and remanded.

HARWOOD, Judge, not sitting.