185 So.2d 393 (Ala. 1966), 2 Div. 475, Edwards v. State

Docket Nº:2 Div. 475.
Citation:185 So.2d 393, 279 Ala. 371
Opinion Judge:COLEMAN, Justice.
Party Name:Harold Leon EDWARDS v. STATE of Alabama.
Attorney:Hubbard H. Harvey, Demopolis, for appellant.
Case Date:March 03, 1966
Court:Supreme Court of Alabama
 
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Page 393

185 So.2d 393 (Ala. 1966)

279 Ala. 371

Harold Leon EDWARDS

v.

STATE of Alabama.

2 Div. 475.

Supreme Court of Alabama.

March 3, 1966

Rehearing Denied and Opinion Extended April 15, 1966.

Page 394

[279 Ala. 372] Hubbard H. Harvey, Demopolis, for appellant.

Richmond M. Flowers, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.

COLEMAN, Justice.

From conviction for murder, defendant automatically appeals. Act No. 249, General Acts 1943, page 217; Code 1940, Recompiled 1958, Title 15, § 382(1) et seq.

Defendant pleaded not guilty and not guilty by reason of insanity.

Ground 18 of the motion for new trial is that 'defendant was prejudiced by being brought before the Court and potential jurors in handcuffs, leg irons, and chains.'

We are not persuaded that reversible error is shown by the mere assertion that defendant was manacled when brought into court. This court has said:

'There is a marked distinction between handcuffing a prisoner in carrying him to and from the court trying him and then immediately removing it and in keeping him in shackles or in handcuffs while being tried. This should not be done unless the situation creates a reasonable belief that such restraint is necessary to prevent his escape, or his rescue. Faire v. State, 58 Ala. 74.' Smith v. State, 247 Ala. 354, 357, 24 So.2d 546, 548.

In this connection, see State v. Roberts, 86 N.J.Super. 159, 206 A.2d 200, where numerous authorities are cited and discussed.

Briefly, the evidence for the state tends to show that defendant, together with three

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companions, Eaton, Coon, and Lokos, took a husband and wife, shot the husband, and then threw husband and wife into a well in a churchyard. The wife survived, the husband died. Defendant has been convicted and sentenced to die for murdering the husband.

An account of the facts is set out in Eaton v. State, 278 Ala. 224, 177 So.2d 444, and repeated in Lokos v. State, 278 Ala. 586, 179 So.2d 714. To these opinions we refer for greater detail. See also Coon v. State, 278 Ala. 581, 179 So.2d 710.

The evidence favorable to defendant is to effect that he was an unwilling member of the group, that Lokos and Eaton had threatened defendant, and that defendant did not in his own person participate in shooting the deceased or in putting him or his wife in the well.

On rebuttal, the state, by the witnesses Smith and Dearman, introduced evidence that Coon had made four statements which tend to show that the defendant, Edwards, [279 Ala. 373] did, in his own person, voluntarily participate in the criminal acts which were committed and did personally join the other three in putting the body of deceased in the well.

On each occasion when the questions were asked calling for the four statements made by Coon, defendant objected, largely on the ground that proper predicate had not been laid. It may be that the predicate referred to by counsel for defendant was a predicate to show voluntariness, but that predicate is not the one which we think was necessary and which was not laid. We think the testimony of Smith and Dearman, showing that Coon had made the four statements which incriminate the defendant Edwards, was not admissible because Coon had not first been asked whether he made at least two of the contradictory declarations attributed to him by Smith and Dearman.

It is established that under the automatic appeal statute, this court may, at its discretion, consider any testimony that was seriously prejudicial to the rights of appellant, and may reverse thereon, although no lawful objection or exception was made thereto. Alberson v. State, 254 Ala. 87, 47 So.2d 182; Dockery v. State, 269 Ala. 564, 114 So.2d 394.

The testimony of Coon supported defendant's contention that he did not, of his own volition, participate in the criminal act. The testimony, that Coon had previously made contrary declarations out of court, was, as it seems to us, seriously prejudicial to appellant, and, if erroneously admitted, as we think it was, requires a reversal of the judgment appealed from.

We summarize the testimony of Coon. On direct examination, he testified that he was one of the four defendants in this matter, that defendant Edwards applied a towel to Mrs. Culpepper's head, that the four came to Alabama around December 12, and spent the night at a church, that Lokos and Eaton made threats towards defendant Edwards, that they said "You can walk out but you wouldn't get very far," that the quoted statement was directed to Edwards and Coon, that Edwards did not strike anybody in the Culpepper house, that Coon did not remember whether Edwards had a gun at the Culpepper house, that Edwards did not help to place Mr. or Mrs. Culpepper in the well, that Edwards did not shoot anybody, that Lokos killed Mr. Culpepper so far as Coon knew.

On cross-examination, Coon testified that he had made a statement in Texas about Eaton and Lokos threatening him, that Coon did not tell Major Jones about Eaton and Lokos threatening Coon, that he thinks he said something about the threats when the solicitor questioned Coon in the Marengo County Jail 'in the presence of Mr. Stevens and Mr. Bratton,' that the solicitor had questioned Coon only one time, that he remembers Dr. Kimbrough, that Coon made a statement to the solicitor that Eaton and Lokos had threatened Coon, that he does not remember whether the two Stevens

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were present, that the solicitor questioned Coon only one time, that Coon did not make the statement 'to us' (solicitor, Stevens, Bratton (?)) that each of the four had guns and that Edwards had a 20-gauge shotgun, that Coon was the one that had the 20-gauge shotgun, that Edwards did not have any gun but had only a big ring of keys, that Edwards was not the one who suggested to go into these two houses, that Edwards did not say at the well that that would be a good place to put somebody or words to that effect, that Edwards did not say that that was a good automobile and a good time to swap automobiles and get the Culpepper automobile. Coon also testified:

'Q. Now you say that Edwards did not have a gun and on direct examination just a few minutes ago, didn't you state that you didn't remember whether he had a gun or not? Which is right? When Mr. Harvey asked you, you said you didn't remember whether he had a gun, and and when I asked you, you said [279 Ala. 374] positively he didn't have anything but a ring of keys; which is right?

'A. That I ain't sure of.'

Coon further said that he did not remember whether Mr. Culpepper's watch was taken off his arm because Coon was not in the room when 'they' searched Culpepper, that Coon does not know whether Edwards was with Coon or not, that Coon did not see Culpepper tied up, that Coon was in the bedroom, that 'this statement' was read to Coon, that Coon did not read the statement, that the signature to 'this statement' is Coon's signature to the best of his knowledge, that Coon 'said three of us and that guy put all four of us,' that Coon will stand on the 5th Amendment.

First Statement.

The examination of Coon then proceeds as follows:

'Q. Didn't you make a statement when we questioned you and asked you about this; Mr. Dick Smith was present at the time, and didn't you make that statement in the presence of Mr. Dick Smith, one of the newspaper men, that, when Mr. Culpepper came in the house, Edwards ran around behind him and put a 410 gauge shot gun in Mr. Culpepper's back?

'MR. HARVEY: We object. Just a minute. Don't answer, please. Now your Honor, he says that the statement was made to Mr. Dick Smith, and we object to that question as to what he said to Mr. Dick Smith.

'COURT: No sir.

'SOLICITOR: In Mr. Dick Smith's presence.

'MR. HARVEY: That's hearsay evidence, your Honor.

'COURT: He is asking this witness if he made that statement in the presence of Mr. Dick Smith.

'MR. HARVEY: It's inadmissible evidence, your Honor.

'COURT: No sir. Overrule the objection.

'MR. HARVEY: We except.

'Q. Didn't you make that statement in the presence of Mr. Dick Smith that, when Mr. Culpepper came in the house, Edwards ran around behind and put a shot gun in his back?

'A. I did not.'

Coon further testified that Edwards had nothing to do with carrying 'them out to the car,' that Coon and Eaton carried them out, that Lokos and Eaton took Mr. Culpepper out to the automobile and Coon and Eaton carried out Mrs. Culpepper, that Edwards was then in the house, that the Oldsmobile left first, that Coon drove the Ford to the well with Mrs. Culpepper and Edwards, that the only thing wrong with the

Page 397

Ford was that the generator wouldn't work, that the Ford was about 300 yards behind the Oldsmobile, that Coon was watching the highway and did not know whether Edwards had a gun in his hand or not, that they had some guns 'all on the back seat,' that there were five or six guns, they were 'Twenty-twos and shot guns,' that Coon drove the car to the well, that he did not know they were heading in that direction.

Fourth Statement.

The following then occurred:

'Q. Didn't you also make the statement in the presence of Mr. Stevens the one time that I questioned you in the Marengo County jail there at Linden, in the presence of Mr. Langford Stevens and Mr. Melvin Stevens and Mr. Bill...

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