Baldwin v. State, 3 Div. 810

• Decision Date: 06 December 1977
• Docket Number: 3 Div. 810
• Citation: 352 So.2d 1156
• Parties: William BALDWIN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1156

352 So.2d 1156

William BALDWIN v. STATE.

3 Div. 810.

Court of Criminal Appeals of Alabama.

Dec. 6, 1977.

Charles Tom Payne, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.

JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Montgomery County charged the appellant, William Baldwin, with first degree murder of John Jackson, by shooting him with a shotgun. Appellant entered pleas of not guilty, and not guilty by reason of insanity. A jury found the appellant guilty of murder in the second degree and fixed his punishment at forty years imprisonment in the penitentiary. The trial court entered judgment in accordance with the verdict, and appellant appeals to this Court.

This appeal was submitted to this Court on briefs. The appellant was represented by counsel of his choice at all proceedings in the trial court and is represented in this Court by different counsel under court appointment.

The appellant argues in his brief four grounds why his conviction should be reversed; first, because the trial court allowed in evidence State's exhibit 3, a pump shotgun and State's exhibit number 4, two spent shotgun shells, and prejudicial testimony about them; second, because the trial court sustained State's objection to a question to appellant's mother calling for hearsay evidence; third, by allowing into evidence a written statement of appellant when there was not sufficient proof of a valid waiver by him of his rights against self-incrimination; fourth, the refusal of the trial court to charge the jury on second degree manslaughter. We will consider the matters treated in appellant's brief in the order therein set out.

State's evidence tends to prove that between 9:00 and 11:00 o'clock, P. M. on a night in the middle of March, 1975 the appellant came around the corner of the house at Bea's Place, in Macedonia Community in Montgomery County with a single barrel sawed off shotgun and shot the deceased in his chest when he was sitting on the front seat of his car which was backing out from in front of Bea's Place; that there was a hole blasted out of the windshield in front of where the deceased was seated; that deceased drove off down the road a short distance where his car went off the road and wrecked; deceased was removed from his wrecked car and laid out on the ground; that after deceased was laid out on the ground beside his car the appellant secured a 12 gauge pump shotgun and went across the road and shot two times down toward the wrecked car where deceased was laid out on the ground; that deceased's death was caused by wounds made by the single barrel sawed-off shotgun; that State's exhibit 1 is the single barrel shotgun first used by appellant; that State's exhibit 3, a twelve gauge pump shotgun, is the second gun used by the appellant when he fired down toward the car of the deceased where the deceased had been laid out; that State's exhibit 4 is two twelve gauge expended shotgun shells; that State's exhibits 3 and 4 were secured by officers at the scene of the shooting on the night of the shooting; that the two twelve gauge expended shotgun shells were fired from State's exhibit 3. The appellant claimed self-defense.

The appellant argues that the State's exhibits 3 and 4 had no bearing on the issues presented by the indictment against him; that there was no proof that any of the shots fired from the pump gun contributed in any way to the death of the deceased; that the introduction into evidence of State's exhibits 3 and 4 was highly prejudicial and had no other purpose than to prejudice the appellant.

Intent to kill being a necessary element of murder in the second degree the burden is on the State to prove it. Smith v. State, 40 Ala.App. 158, 109 So.2d 853, and cases therein cited. The test as to the admission of evidence is stated in Rollings v. State, 160 Ala. 82, 49 So. 329, and again by Justice Merrill in the case of Nichols v. State, 267 Ala. 217, 100 So.2d 750. The test is that the evidence, "must have some tendency to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered. It must have some tendency to shed light upon some material inquiry." We hold that under the facts shown by the record in this case State's exhibits 3 and 4 and the evidence that the spent shells were fired in State's exhibit 3 is admissible evidence for the jury to consider on the material issue of intent of appellant. Nichols v. State, supra; Rollings v. State, supra.

The second contention of the appellant occurred during the direct examination of appellant's mother who owned and operated Bea's Place. We quote from the record,

"Q Okay. Do you know a girl by the name of Shirley Givens?

A Yes, I know Shirley Givens.

Q Did you have a conversation with her in and around the time of this shooting and right around the time all of this happened?

A Right around the time I did.

Q Did the conversation you had with her include a conversation she had just had at the scene with Jim Green?

A Yes.

Q I will ask you to relate to this Court what Sirley Givens told you?

MR. ESPY: Your Honor, we object to that.

THE COURT: Sustained.

Q Was this there right at the scene after it happened?

A That is right.

MR. COLLIER: Your Honor, it is part of the res gestae.

THE COURT: No.

MR. ESPY: If you can produce that witness. You know better than that, Wayne.

THE COURT: All right.

Q Henrietta, where is Shirley Givens?

A She is in Ohio. She is not here.

Q She is out of the state?

A RIGHT.

MR. COLLIER: Your Honor, the witness is not available.

THE COURT: It still would be hearsay testimony not subject to cross examination. The Court would rule that she can't report any conversation she had with anybody else.

MR. COLLIER: That is all. Your witness."

Appellant contends the conversation that the witness, Henrietta, had with Shirley Givens about a conversation Shirley Givens had with Jim Green was a part of the res gestae and exempt from the hearsay rule, and the action of the trial court in sustaining State's objection was highly prejudicial to him. Res gestae is difficult to define. It is a question for the court to decide under the particular facts in each case.

It is clear from the record in this case that appellant was offering his mother as a witness to recount an alleged conversation that Shirley Givens, who was not a witness, had with Jim Green, who was a witness. This conversation was after the shooting. We hold that a statement which is merely a narration of a past transaction is not a part of the res gestae, and that the trial court was correct in it's ruling. Illinois Central R. R. Co. v. Lowery, 184 Ala. 443, 63 So. 952; Dean v. State, 105 Ala. 21, 17 So. 28; Reese v. State, ...