This appellant stands convicted of murder in the second degree under an indictment charging him with murder in the first degree. The victim was appellant's young stepson, and died as a result of poisoning.
The evidence submitted by the State was, in our opinion, wholly sufficient to support the verdict and judgment rendered. *Page 446
This court certified to the Supreme Court the following question in this case: "On the indictment hereinabove set out, was the jury authorized to find the defendant guilty of a lesser offense than murder in the first degree?"
The Supreme Court has answered this question in the affirmative, and thus disposed of one of the important questions involved in this appeal. See 254 Ala. 1, 48 So.2d 7.
The only other point, or points of sufficient import to warrant discussion involve the conduct of the Solicitor in his argument to the jury, and his cross examination of the appellant.
This argument has been set out in full in the record. We will extract only those parts urged by counsel as prejudicial, or which we consider material to this decision.
It is inferable from the record that Mr. Laudon Williams had testified as a witness in a previous trial of this case, but not in the present trial.
The record shows the following statements during the Solicitor's argument:
"When this case first broke, late in the afternoon, when we were in the trial of this case, Laudon Williams, of the Montgomery Apothecary, came into this court house, and called Mr. Hinson off and told him about it.
"Mr. Pinkston: We object to that and ask to exclude it from the jury.
"The Court: Yes, — that isn't evidence in the case.
"The Solicitor: What is that?
"Mr. Pinkston: You spoke about Laudon Williams, what you said.
"The Solicitor: You object about that?
"Mr. Pinkston: Yes, I do.
"Mr. Spann: We move to exclude it.
"The Court: Yes, — that isn't evidence in the case, what the Solicitor said about that witness, gentleman, coming into this court house; It is only what has been testified in this case that you consider.
"Mr. Pinkston: He has told the jury that this man came to the Solicitor and made a certain statement, — he knows that is improper.
"The Solicitor: I don't know anything of the kind.
"Mr. Pinkston: I am making my objection to the Court; he knows it is made wholly to prejudice the jury; he knows it is improper; we insist on a fair trial; after the Solicitor making such a statement, which cannot be based on any evidence in the case, we object to that and we move for a mistrial at this time.
"The Court: I overrule your motion.
"Mr. Pinkston: We except.
"The Court: I will tell the jury not to consider that testimony, it is not testimony in this trial; but I will say in deference to his remarks that Mr. Pinkston commented that Laudon Williams didn't say so and so, that was in reply to that, — if he had known anything he would have reported it to the Court.
"Mr. Pinkston: I am not guilty of that, Judge.
"The Solicitor: I don't want to prejudice this jury. God knows I don't. I have tried this case three times, and put every ounce of energy I had in this case, because I am convinced from the evidence that this man poisoned that child. Laudon Williams testified in the trial of this case, I know, —
"Mr. Pinston: We object to that. Is that proper argument? We renew our objection to the Solicitor's statement.
"The Solicitor: Didn't he testify?
"The Court: He testified (once), but it is not in evidence in this case.
"Mr. Spann: We do object to it, and we renew our motion and objection, and ask the Court to enter a mistrial, on his argument to the jury that a witness who has not and did not testify in this case made a certain statement, which was made to the jury, and he made it, apparently to prejudice the jury. It leads the jury to believe that he made such a statement; and the Solicitor knows that Laudon Williams in this case did not testify. According to the testimony of another witness in this case, he sold the poison, and he knows that is one of the weak links in the testimony, and he is trying to bolster it up by a statement made to this jury about which there is no testimony *Page 447 given, and we respectfully submit to the Court that it is prejudicial to our client. We move for a mistrial.
"The Court: I overrule your motion.
"Mr. Pinkston: We except.
"The Court: All right.
"The Solicitor: I would give my right arm rather than to make a statement that would do him any damage before the jury. I have nothing in the world against that man, and I don't want to make any statement that would prejudice this jury. That is not my intention. I know Grover Pilgreen is still working for Mr. Williams. He has not been fired for giving his testimony in this case, and I know that the defendant swore to an untruth, according to the police record in his attempt to convey the information that Grover Pilgreen had a former police record. And I know that Charley Pinkston in his cross examination tried to construe the fact that Grover Pilgreen had drunk whiskey. What did that have to do with the case. You drink whiskey, I don't know, but I don't want even —
"Mr. Pinkston: I don't drink whiskey; it has been some time since I had a drink.
"The Solicitor: You may not drink it; it is all right; I withdraw that.
"The Solicitor: Grover Pilgreen is still working for Laudon Williams. Grover Pilgreen appeared in this court, forced by an attachment, we took him out of his home, he declined to come.
"The Court: That is evidential. (Objection and motion to exclude.)
"The Solicitor: He was brought in.
"The Court: It is in the evidence, I overrule the motion.
"The Solicitor: He was brought into this Court. He didn't want to testify against Houlton. He didn't want to testify against him. He had nothing against him, and he has got nothing against him now. All he was doing was testifying in response to the process of this court."
It is to be noted that in the above argument the extent of the reference by the Solicitor to Laudon Williams was that Mr. Williams had "called Mr. Hinson off and told him about it." No details of what Mr. Williams may have told Mr. Hinson were brought out by the Solicitor. The court sustained the defendant's objections and instructed the jury that such statement was not evidence. It is further to be noted that the court stated that the argument was in reply to argument of defense counsel. The defense counsel's argument is not set forth in the record. We cannot therefore determine whether the argument was a reply in kind or not in this state of the record, other than such light as is thrown thereon by the court's statement to that effect.
Be that as it may, in view of the uncertainty of any harm that may have resulted from the Solicitor's mere statement that Mr. Williams had told Mr. Hinson about the case, with no details as to what Mr. Williams said being brought out, and further in view of the court's action in sustaining defendant's objections to the Solicitor's argument, and instructing the jury that same was not to be considered, it is our conclusion that any harm that may have been occasioned is so speculative as to prohibit a reversal of this cause because of the court's ruling denying defendant's motion for a mistrial because of this portion of the Solicitor's argument. A mistrial will not be entered on motion of the defendant where the court has sustained his objections to alleged improper argument and instructed the jury not to consider same, unless it clearly appears that the defendant's rights have been so prejudiced as to render a fair trial a matter of grave doubt. We cannot rationally say that the matters above considered create such doubt.
Appellant's able counsel further urges that this cause should be reversed because of the Solicitor's conduct during the cross examination of the appellant, and his method of such examination.
In this respect the record shows that twice during the examination defense counsel objected to the Solicitor standing near the appellant during his cross examination and shaking his finger at the defendant. In each instance the court sustained the objection and admonished the Solicitor to desist *Page 448 in such action, which apparently was done.
Several general objections unsupported by any grounds, were interposed to questions propounded by the Solicitor to the appellant during this examination. In each instance the court sustained these objections. It is our opinion that none of these questions asked by the Solicitor were, in view of the court's action in sustaining the objections interposed to them, of sufficiently prejudicial tendencies to justify a reversal of this cause. Long v. State, 33 Ala. App. 463, 36 So.2d 133, certiorari denied 250 Ala. 711, 36 So.2d 136; Pate v. State,32 Ala. App. 365, 26 So.2d 214; Cauley v. State, 33 Ala. App. 557,36 So.2d 347, certiorari denied 251 Ala. 163, 36 So.2d 354; Head v. State, Ala.App., 44 So.2d 441;1 Walden v. State,34 Ala. App. 29, 36 So.2d 556, certiorari denied 251 Ala. 144,36 So.2d 558; Corsbie v. Poore, 29 Ala. App. 487, 198 So. 268, certiorari denied 240 Ala. 207, 198 So. 272.
The trial judge gave a full and clear oral charge to the jury. In addition he gave some fourteen written instructions at the appellant's request.
Four written charges requested by the defendant were refused.
Refused charge 1, being affirmative in nature, was properly refused under the developed evidence of this case.
Charges 3 and 18 are identical. They were properly refused because of the use of the word supposition. Mitchell v. State,28 Ala. App. 119, 180 So. 119, certiorari denied 235 Ala. 530,180 So. 123.
Charge 14 was properly refused. See Brown v. State,33 Ala. App. 97, 31 So.2d 670.
The foregoing opinion was prepared prior to reading the dissenting opinion of Presiding Judge Bricken.
We disagree with Judge Bricken's views that this appellant's conviction was had mainly upon the testimony of the witness Pilgreen. Other elements are deducible from the evidence which in our opinion raise strong inferences of appellant's guilt. We now feel we should set out some of the evidence tending to establish these elements.
The deceased child was sick for several days prior to his death, suffering from vomiting and upset stomach, which symptoms were shown by testimony to accompany arsenic poisoning.
The mother of the child worked in a cafe during this period. The appellant was working part time as a fireman on a railroad, but for most of the period shortly prior to the child's death was at home.
There was evidence tending to show that upon the first illness of the deceased the appellant reported such fact to the mother at her place of employment, but stated that the child appeared to be much better. These same symptoms continued to occur for three or four days. The child's mother testified that some two days prior to its death the appellant told her he had had Dr. Alice Pye visit the child at home, and that Dr. Pye had stated that the child had only a slight colitis, and to give it a few drops of paregoric.
The mother of the child also testified that one night during the child's illness he had asked for water, and had stated he did not want any sweetened water; "and I says, 'Well, darling, you haven't had any sweetened water,' and he says 'Yes, Daddie Bill (appellant) gave me sweet water.' He said it was sweet and wasn't good." This occurred in the presence of the appellant.
Other evidence of the State tended to show that arsenic has a sweetish taste.
Dr. Pye testified that on the morning of Wednesday 22 October, the appellant came to her office and said that the child was sick, and had been sick since the previous Sunday, and after detailing the child's symptoms asked for a prescription. Dr. Pye, whose office was less than two blocks from the appellant's home told appellant it was not her habit to treat children without seeing them, and that she would see the child in her office if appellant would bring him in. The appellant never brought the *Page 449 child to Dr. Pye, nor was Dr. Pye called to appellant's home. The night following, at about 12 o'clock, Dr. Pye was called to the hospital to see the child. She found him "in a deep coma, just as though he was sleeping, and in a very few minutes, say ten or fifteen minutes, he expired. And I examined him as best I could at the time. I saw no cause for the type of coma, near death, and in about an hour, he just slept away."
Mr. W.G. Farmer, an insurance agent, testified that a few weeks before the death of the child the appellant had taken out a life insurance policy on it, in the amount of $500.00, making himself beneficiary. The appellant had requested Mr. Farmer not to mention anything to the child's mother about the taking out of this insurance.
The mother of the child testified that she did not know of the insurance transaction.
The evidence further shows that the appellant was in financial straits at about this period of time, and was involved with 7 or 8 loan companies.
After the child's death there was apparently quite a family argument as to the place of burial, the appellant insisting that the body not be carried to Georgia for burial, as the mother and her people wished. The child's body was however interred in Georgia.
After the child had been interred, but before exhumation of the body, the appellant went to the office of Dr. Pye and entered into a conversation with Mrs. Laura Penton, a nurse in said office. In the course of this conversation the appellant stated that "they suspected him of giving poison," and asked Mrs. Penton what the effects of arsenic would be.
Examination of the organs of the child made by the State Toxicologist of Georgia show that they contained arsenic in quantities many times larger than would be necessary to have caused death. From his examination and tests Dr. Jones, the toxicologist, was of the opinion that the arsenic had been administered to the child over a period of time.
In his testimony the appellant denied that any of the above outlined facts had occurred. This contradiction of course raised but a question of fact solely within the province of the jury to resolve.
The court in its oral charge instructed the jury fully as to the burden of proof cast upon the State; as to the defendant's presumption of innocence; as to their duty to the defendant; and as to the burden of proof in circumstantial evidence cases; and that this was a circumstantial evidence case.
Both the Solicitor and the counsel for the appellant announced they were satisfied with the oral charge of the court.
The court also, at the request of the appellant gave some fourteen written instructions to the jury. Practically all of these written instructions outline the circumstances under which the defendant could not be convicted, or should be found not guilty.
This aside, it affirmatively appears that appellant's counsel announced they were satisfied with the court's oral charge. In the absence of an exception to the court's oral charge we are of the opinion that nothing is presented to us for review in this regard. Indeed, in the fairly recent case of Easley v. State, 246 Ala. 359, 20 So.2d 519, the Supreme Court held that even in appeals perfected under our automatic appeal statute, that such statute is not broad enough to require review of an oral charge in the absence of exceptions thereto.
We are not impressed that the conduct of the Solicitor in the present case was of such prejudicial tendency as to make applicable the doctrine enunciated in the Blue case, [Blue v. State, 246 Ala. 73, 19 So.2d 11], cited and relied on in the dissenting opinion. Certainly the questions propounded in the Blue case were unquestionably of a type which were likely, if not necessarily, to arouse the emotions of a jury to the prejudice of the defendant. We do not find that degree of impropriety in the present case.
It is our opinion that this record is free of error probably injurious to the substantial *Page 450 rights of this appellant and is therefore due to be affirmed. It is so ordered.
Affirmed.