Arrington v. State

• Decision Date: 18 June 1929
• Docket Number: 4 Div. 545.
• Citation: 23 Ala.App. 201,123 So. 99
• Parties: ARRINGTON v. STATE.
• Court: Alabama Court of Appeals

123 So. 99

23 Ala.App. 201

ARRINGTON v. STATE.

4 Div. 545.

Court of Appeals of Alabama

June 18, 1929

Appeal from Circuit Court, Henry County; H. A. Pearce, Judge.

Wheeler Arrington was convicted of manslaughter in the first degree and he appeals. Reversed and remanded.

Sollie & Sollie, of Ozark, R. W. Miller, of Abbeville, and O. S Lewis, of Dothan, for appellant.

Charlie C. McCall, Atty. Gen., and J. W. Brassell, Asst. Atty. Gen for the State.

RICE J.

Appellant was the town marshal of the town of Abbeville, in Henry county. He killed one Will Bethune a merchant of said town, by shooting him with a pistol.

Upon the trial, under an indictment charging murder in the first degree, appellant was convicted of the offense of manslaughter in the first degree, and his punishment was fixed at imprisonment in the penitentiary for a term of five years.

The evidence discloses that there had been some prior difficulties, in which guns and pistols had been used, between deceased and appellant, and that numerous threats had been made by deceased to kill appellant; also that appellant had formerly threatened to kill deceased.

It would be difficult for a record to disclose more clearly and vividly that there was "bad blood" between the deceased and his slayer. It should be said, though, we think, that the overwhelming weight of the evidence goes to show that deceased was determined to have the town council discharge the appellant from his position as town marshal, coupling his insistence to this end with his expressed intention of killing appellant, should the town council not so discharge him, and that the town council had refused to discharge him.

With the feeling between deceased and appellant as we have indicated above, upon the occasion of the fatal difficulty, appellant met deceased upon one of the streets of Abbeville, and, in the difficulty which ensued, shot and killed him.

The plea on the trial was self-defense. Appellant's testimony, and that offered in his behalf, tended to support said plea. The testimony on behalf of the state tended to show an unjustifiable homicide.

The contention of the state, as its testimony indicated, and tended to support, was that, immediately prior to the fatal encounter, appellant was, for some time inside the building of the Abbeville State bank, at a point near a table or desk from which, through a window, he could and did see the deceased coming up the street past a certain store, and that, when deceased had reached a certain point, appellant walked out of the bank building and met and shot the deceased.

The contention of the appellant was that, from the point where he was in the said bank building, at the time mentioned, he could not and did not see the deceased approaching, but that, his business in the bank being concluded, he walked out of the said bank building and casually or unexpectedly met the deceased coming up the street.

In other words, the question of whether or not appellant purposely encountered deceased in the street on the occasion of the fatal shooting was one of the litigated questions in the case. Its solution or answer was important as for its bearing upon the credibility of the testimony relating to appellant's acting in self-defense vel non when the shooting took place. The testimony on this question (i. e. as to whether or not appellant could, from the named location inside the said bank building, see deceased, as he came up the street to the point, near said building, where he met appellant) was in conflict. And the answer to the question, as we have shown, was very material.

Appellant, filed a motion for a new trial, and properly presents for review the action of the court in overruling it. The said motion for a new trial was based upon the alleged misconduct of the jury trying the case, and said alleged misconduct may be conveniently stated by quoting literally from one of the affidavits filed on the hearing of said motion, as follows:

"My name is Bob Freeman. I am one of the deputies who were in charge of the jury who tried Wheeler Arrington for killing Will Bethune; on Saturday evening August 18th, 1928, after the case of the State v. Wheeler Arrington was closed, the Judge's charge given the jury, and the jury retired to consider the case, and as night approached, I and Lee Stokes, the other deputy sheriff in charge of the jury with me, took the jury to Mrs. Bedsole's for supper, and on our return we walked up the sidewalk which led just in front of the store occupied by Loeb Kraselsky on the southwest of the public square, at the time Will Bethune was killed, and when we reached the north side one of the jurors said 'let's go up this way' and walked on up said sidewalk toward the Abbeville State Bank and when they got near to the south side or south east corner of said bank building several of

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