Pursuant to rehearing granted, we have heard oral argument of counsel and considered additional briefs and reconsidered the record.
On rehearing plaintiff in error has presented several grounds for contending that the judgment should be reversed, none of which contentions were presented in the court below, nor were they raised by assignments of error or otherwise except by contentions in brief and oral argument. The rule is well established that questions not presented in the court below are not to be considered in the appellate court. If it were otherwise there would be no end to litigation. The enforcement of criminal law is lax enough at best and we should not make it worse by violating the established rules of procedure and practice unless it be shown that it is essential to do so to administer justice.
We have carefully again considered the evidence as contained *Page 451 in the transcript and while it is not sufficient to exclude every possibility that the plaintiff in error may be innocent, it is strong enough to exclude every reasonable doubt of his guilt.
The state relied upon circumstantial evidence. The circumstances shown are consistent with guilt and are not consistent with innocence.
Reverting to the statement above to the effect that we should not violate the established rules of procedure and practice unless it be shown that it is essential to do so to administer justice, we may say that we find in this record nothing that makes it essential for us to disregard such established rules.
On rehearing the plaintiff in error has contended strenuously that the court was misled and misconstrued the evidence because of statements in the brief of Attorney General, one of which was to the effect that the testimony of the sheriff showed that the defendant R.J. Dewey told the sheriff that when he could not find his truck keys he covered the body of his wife up with a blanket and went to bed and "went to sleep," when the record shows that he only said that he "went back to bed" and that next morning he "got up and went across the field and let this darkey know about it." We cannot see that whether or not Dewey said he went to sleep after he went back to bed makes any difference one way or another.
The other matter complained of is that in the brief for the Attorney General and in the opinion by the court it was stated that Dewey told the sheriff that when Dewey's mother was awakened by the report of the pistol and inquired what was the matter that he, Dewey, told her to go back to sleep, when, as a matter of fact, it was Mrs. Dewey, the defendant's mother, who was co-defendant with him, who told the sheriff that that was what happened. *Page 452
Whether Dewey told his mother to go back to sleep or not can be of no material importance because the record shows that she did rouse up when the gun was fired and that she did go back to sleep and, although the defendant Dewey testified that she, his mother, was in the house with him at the time the homicide occurred, he did not testify that he said anything to her about it.
It is also contended that illegal evidence was introduced against this defendant, Dewey, and that the sheriff was allowed to testify as to statements made to him by Mrs. Vivian Dewey, R.J. Dewey's mother. At the time the sheriff made those statements as a witness on the stand Mrs. Dewey was a defendant on trial and therefore, the evidence was entirely legal and was not objected to and had it been objected to it should not have been excluded because it was admissible for the purpose of showing that Mrs. Dewey was present in the house when the homicide occurred. Aside from this, the testimony of the sheriff as to what Mrs. Dewey told him was of no value as evidence for or against either of the defendants. However, after the trial judge had instructed the jury to find Mrs. Vivian Dewey not guilty, there was no motion to exclude from consideration of the jury the testimony given by the sheriff as to what Mrs. Dewey had told him. It appears that it was considered then of no importance, and properly so.
It is also contended that certain charges given by the court were prejudicial and unwarranted and, while no exception was taken to such charges by motion for new trial or otherwise, it is now contended that the judgment should be reversed because of the giving of charges numbered 9-a and 9-b, which are as follows:
"9-A. As to the defendant, Vivian Dewey, the court charges there has been no testimony given in this cause to show that she was in anywise responsible for or connected *Page 453 with the shooting of Mrs. Margaret Dewey, and you are therefore instructed to render a verdict of not guilty as to her.
"9-B. But as to the defendant R.J. Dewey the question of his guilt or innocence is submitted to you for such verdict thereon as you, in your judgment deem the evidence warrants and supports."
In connection with these charges there must be read charges 8 and 9, which are as follows:
"8. It is the contention of the defendant, R.J. Dewey, that his wife, the deceased, Mrs. Margaret Dewey, came to her death as a result of pistol wound inflicted by her own hand with suicidal intent and he denies that he shot Mrs. Dewey, or was in any way responsible for the firing of the shot which caused her death, and that at the time of the firing of the shot he was lying in front of a nearby fireplace engaged in reading. Therefore, I charge you that if you believe from the evidence that Mrs. Margaret Dewey committed suicide, and that the defendant R.J. Dewey did not shoot her as charged, then you should find the defendant Dewey not guilty, or if you have a reasonable doubt from the evidence, or the lack thereof, as to whether Mrs. Dewey killed herself, or was killed by the said R.J. Dewey, then you should find the defendant not guilty.
"9. However, if you are convinced from the evidence beyond a reasonable doubt that the defendant R.J. Dewey shot and killed his wife in manner and form as charged then you should find the defendant guilty as charged or of such degree of homicide contained within the indictment as you deem the evidence warrants and supports."
When charges 9-A and 9-B are read in connection with charges 8 and 9 there can be no ground for holding the charges misleading or prejudicial to the plaintiff in error.
The jury were the judges of the credibility of the witnesses *Page 454 and the weight of the testimony. They saw and heard the witnesses as they testified on the stand and under a fair charge by the court they found the defendant guilty of murder in the second degree under evidence which would have warranted a verdict of murder in the first degree. An experienced, able and conscientious trial judge heard the testimony, saw the witnesses on the stand and approved the verdict by denying motion for new trial which specifically challenged the sufficiency of the evidence. Therefore, for the reasons stated herein and stated in the former opinion filed here on July 20, 1938, we should adhere to our judgment of affirmance.
It is so ordered.
TERRELL, C.J., and WHITFIELD, BUFORD and THOMAS, J.J., concur.
BROWN and CHAPMAN, J.J., dissent.