The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1904-07-10
KRoELL v. THE STATE

kROELL v. THE STATE.
Indictment for Murder.-Appeal from
the Circuit Court of Shelby.
1. Trial and its Incidents; continu-
ancs discretionary with the court; not
revisable on appeal--A motion for
continuance of a cause is addressed to
the sound discretion of the court. and
in the absence of a showing that the
court abused its discretion In allow
ing the motion for a continuance, the
action OF the court upon such motion
IL not revisable on appeal.
2. Same; same; case at bar.-When
a case for murder was called the de-
PENDANT moved for continuance on
the ground of the absence OF two phy-
sicians who were material witnesses.
On the hearing of the motion, 1t was
shown that these physicians lived more
than 100 miles from the place OF the
trial, that no effort had been MADE 10
Obtain the dispositions of said VIII
nesses until the Saturday just precea-
ing the wednesday, which was tne aas
set for the trial. The State op1ecteu
to a continuance of the case. Heio'
That in denying the motion for a con
tfnuance. there was no abuse OF the
discretion of the trial court, but un-
der the-fact such ruling was propei'
and that the court did not err III
fusing to put the State TO an aui
sion as to what the absent physiciah'
would testify.
Denositions; not admissible when
taken and certified to by stranger TO
thu commission.-Deposit or absent
witnesses. when not taken or certineo
by commissioners appointed LOT such
purpose, but by a stranger TO the COM
mission, are properly suppressed ana
where such dispositions were filed In
court after the tNal had been entered
grant a motion to suppress such de-
positions, when they are offered in evil
dence
4. Insanity; admissibility of nom
expert testimony.-Where a witness in
a criminal case. though not competent
to give his opinion as an expert as to
defendants sanity. testifies that he had
known the defendant for several years
and had lived in the same town with
him. that he had business transactions
with him, conversed with him and had
seen him almost daily, had seen him
have business transactions with other
people, and that at the time of the
commission of the offense defendant
was engaged in business. such witness
is qualified to express his opinion as to
the defendants sanity. in connection
with his testimony as to the facts.
S. Insanity as a defense; when tes-
timony as to defendants sanity not
prejudicial-On the trial of criminal
case where the defendant interposes
the plea of mot guilty" and the stat
utory pleea Of mot guilty by reason
of insanity" the fact that one of the
States witnesses testified as to the de-
PENDANTS sanity before there is any ev-
idence offered by the defendant to show
his insanity, does not prejudice the de-
PENDANT and constitutes no ground for
a reversal of the judgment of convic-
ton.
6. Homicide: admissibility of evil
ience as to firing of fatal shot.-On n
trial under an indictment for murder,
where the evidence shows that there
were several shots fired on the occa-
sion of the homicide, all by the person
or persons who assailed the deceased,
and there is a question as to whether
they were all fired by one man. wit
ness who was looking on at the flashes
of the guns at different places, noting
their nearness in point of time and
apparent distance apart In point or
space, and hearing and noting the
closencess OF reports, Is competent to
testify as to whether in his opinion,
Judging from the positions where the
flashes occurred and the close success
sion of the shots, one man could have
fred all of the shots.
T. Homicide: when particulars of
former difficulty admissible.-On trial
under an indictment for murder, where,
upon the cross-examination of States
witness the particulars of former diff
flculty between the deceased and the
defendant were in part drawn out by
the defendant, it Is not error for the
court to allow the State, on redirect
examination of said witness. to draw
out the other particulars of said for
mer difficulty.
s. Homicide; insanity; when ruling
of Judge as to witness not being ex-
pert without injury.-On a trial under
an Indictment for murder, where. in
addition to the plea of mot guilty
the defendant interposed the statutory
plea of mot guilty by reason OF insan-
ity," and upon the examination of a
physician before the court, in the alb
sence of the jury, the court decides
that said witness was not an expert,
and could not be examined as an ex-
pert on insanity. and after such ruling
the witness was allowed to give his
opinion from what he knew of the de-
PENDANT that he was of unsound mind
and had form of epilepsy which
would sooner or later develop into in
sanity, and upon cross examination the
witness testified that he considered the
defendant insane at the time of the