Kroell v. State

McCLELLAN, C. J. — The defendant’s motion for a continuance was addressed to the sound discretion of the court. The action of the court upon it is not reviewable here, certainly not in the absence of a showing that the court abused its discretion in denying the motion. So far from such showing being made, the record before us would require our concurrence in the ruling of the trial court even if the matter were not one for the exercise of its discretion. What we have just said applies also to the refusal of the court to put the State to an admission of what Doctors Searcy and Partlow would testify. On the facts disclosed the defendant had the right to take the deposition of these witnesses, but no right to their personal attendance at the trial, and he might well have taken their depositions and had them in court when the trial was entered upon, but neglected to take steps to that end in proper time. Efforts were made at the eleventh hour to procure the depositions of these witnesses, and papers purporting to be their depositions were filed in court after the trial had been entered upon. At the State’s motion these alleged depositions were properly suppressed when offered by the defendant, on the ground that they had not been taken or certified by the commissioners appointed to take and certify the depositions, or by any of them, but by a stranger to the commission. It is no objection to this action of the court that it ■was not had, nor that the motion therefor was not made, before the trial was entered upon, since the depositions could not have been suppressed nor the motion to that [12] end been made prior to entering upon the trial for the reason that tliey had not then been returned into the court. Dr. Lane, though not competent to give his opinion as an expert witness as to defendant’s sanity, testified to such facts about him within his own knowledge as qualified him to express his opinion on the subject in connection Avith his deposition to the facts. The fact that this testimony of Lane Avas drawn out before defendant offered any evidence to shoAAr insanity did not prejudice the defendant, and Avould not have done so had the defense offered no evidence on the subject, since in that case it Avould have been but redundant upon the legal presumption of sanity. As the defendant subsequently adduced such evidence, the irregularity, if such it was, was cured. At least four shots Avere fired on the occasion of the homicide, all by the person or persons Avho assailed the deceased. There Avas a question on the trial whether they Avere all fired by one man. The evidence Avas that the shots Avere fired in quick succession, and that the gun flashes Avere at tAvo or more places in the street near the place where the body Avas found. It would have been a difficult matter for the witnesses to get before the jury the distance in point of space between the places at Avhich the shots or any two of them Avere fired. It Avould have been even more difficult for the witnesses to tell the jury what intervals of time elapsed between the shots. It is, indeed, practically impossible for the average man to measure with any approach to accuracy intervals of time tolled, by a few seconds, to state them in terms even approximately, or to appreciate their duration when stated as so many seconds, or such part of a second, etc., etc. But one looking on at the flashes of guns at different places, noting their nearness in point of time and apparent distance apart in point of space, and hearing and noting the succession of reports, may reach a very reliable and accurate conclusion as to Avhether the man Avho fired the first shot at one point could have gone to the point where the second one Avas [13] fired in the interval of time between the two. Such a conclusion, or opinion, or collective fact, or whatever it may he most appropriately called, is the best evidence bearing on the point of inquiry that the nature of the case admits of. Tt is upon these considerations that we rest our concurrence in the ruling of the trial court that it was competent to ask witnesses who saw the several flashes from the guns and heard their reports whether in their opinion, judging from the positions where the flashes occurred and'the close succession of the shots, one man could have fired all the shots. — Mayberry v. Stale, 107 Ala. 64, 67; Whart. Ev. § 511; Lawson’s Expert Opinion Evidence, 460. The particulars of the former difficulty between Kroell and Gary having been in part drawn out by the defendant on the cross-examination of the witness Mc-Phail, the court did not err in allowing the State on the redirect examination of this witness to draw out sucli other particulars of that difficulty as he deposed to.— Longmire v. State, 130 Ala. 66, 68, and authorities there cited. We need not decide whether the judges’ opinion and conclusion' — stated in the absence of the jury — that Dr. Gibson was not an expert, and his ruling that he could not be examined as an expert on insanity, were correct. The witness was allowed to give his opinion from what he knew of the defendant, that “he was not right,” i. c., in his mind, and that as an expert that he had a form of epilepsy which would sooner or later develop into insanity, and, upon cross-examination that he considered him. of unsound mind at the time of the homicide. No offer was made to propound hypothetical questions to the witness, and if the defense had offered and been allowed to propound such questions, they could not have embodied any facts which he did not himself know and had deposed to, and upon which he had given his opinion as to defendant’s sanity, since all the facts bearing upon the prisoner’s mental state which were in evidence from any source were known to this witness and by him made the basis of the opinions which he expressed. So that had the court ruled the witness to be competent as [14] an expert no more could have been gotten from him in support of the plea of insanity than was in fact drawn out on his examination, and it follows that if the court was technically in error in holding the witness not to be an expert, no injury resulted to the defendant. Charges 1 and 2 requested by the defendant were properly refused. — Lide v. State, 133 Ala. 43, 64, and authorities there cited; Porter v. State, 135 Ala. 51; Code, § 4938. We have discussed all exceptions reserved which are insisted on in the briefs for appellant. All other exceptions have been considered, and found to be without merit. Affirmed.