Bennefield v. State
| Decision Date | 18 October 1966 |
| Docket Number | 6 Div. 19 |
| Citation | 202 So.2d 48,44 Ala.App. 33 |
| Parties | Ottis Edward BENNEFIELD v. STATE. |
| Court | Alabama Court of Appeals |
Robt. C. Barnett, Birmingham, for appellant.
Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
Appellant was indicted and tried in the Circuit Court of Jefferson County, Alabama, for the offense of murder in the first degree of his wife by choking her and found guilty of the offense of murder in the second degree. His punishment was fixed at twenty years imprisonment in the State penitentiary. He appeals to this court from that judgment.
The tendency of the evidence was that on Saturday night, August 31, 1963, a Mrs. Sue Bennefield was killed. The cause of death, according to Dr. Lamar C. Meigs, was 'a compression force applied to the neck'. About 9:30 P.M., a witness, Mrs. Sandra Hunter, saw deceased and another person walking east on Sixth Avenue, North, Birmingham, Alabama, the street on which she (witness) lived. Deceased started running away from the man. He caught her and started slapping her on her face. Deceased screamed a couple of times. Deceased and the man were next seen near the side of an apartment building. Deceased was on her back and the man was sitting on top of her at 'about the hips'. The man left and when the police arrived, deceased was found dead.
Appellant claims that the last time he saw deceased was about 6:00 P.M. on the day she was killed. He stated that from about 6:00 P.M. until around midnight, he went to a cafe and had 'a few beers', returned to deceased's apartment, and then visited several cafes and clubs drinking until closing time at midnight. He stated that he didn't remember anything from this time until sunrise the next morning when he read about deceased's death in the morning paper. He then hitchhiked to the cities of Oneonta, Ashville, Talladega and finally to Winterboro where deceased was buried. He was arrested as he was walking up the road toward the church where the funeral for deceased was being held. Due to objection by members of deceased's family, appellant was not allowed to attend the funeral services.
On December 21, 1962, appellant and deceased were divorced by an order of the Circuit Court of Talladega County, Alabama. Since the filing of the Bill for Divorce and the time the divorce was granted, appellant and deceased had lived together as man and wife. The frequent and irregular periods of time they were not living together were determined by the emotional outbreaks of deceased at which time deceased invariably called the police and put or attempted to put appellant under a peace bond. A few days later they would be living together again.
Several pages from the Jefferson County Criminal Court trial docket were introduced into evidence over the objection of appellant. One page of the docket showed that: on an affidavit and warrant issued on the complaint of Mrs. Sue Bennefield appellant was arrested and on April 25, 1963, he was found guilty of a breach of the peace and bond was required of him in the sum of $500.00 to keep the peace for six months; and that on May 9, 1963, appellant failed to appear, bond was forfeited and an alias warrant ordered issued. There was testimony of several other occasions (one in May, 1960) when appellant was arrested for a breach of the peace. Some of the charges were dismissed because Mrs. Sue Bennefield would not appear in court as a witness.
The following occurred while appellant was testifying on cross-examination:
'(Thereupon, the question last propounded was read by the court reporter.)
'
Evidence of appellant's having been arrested at the insistence of deceased for assault and battery upon her and threatening her life is admissible. It tends to show that appellant threatened deceased. Grooms v. State, 228 Ala. 133, 152 So. 455. It tends to show malice on the part of appellant toward deceased. Blue v. State, 246 Ala. 73, 19 So.2d 11. It tends to show a motive. Bell v. State, 170 Ala. 16, 54 So. 116.
The case of Helms v. State, 254 Ala. 14, 47 So.2d 276, is not in point. In that case the court held that it was improper to prove that defendant had been placed under a peace bond. In that case the purpose of the evidence was to rebut the evidence as to defendants' good reputation. The sole purpose of such evidence in the case at bar was to show malice and motive toward deceased.
The evidence of threats and assaults upon deceased by appellant committed several years prior to commission of the homicide was not too remote to be considered by the jury.
The lapse of time does not render evidence of threats inadmissible. Rector v. State, 11 Ala.App. 333, 66 So. 857, (threat made two years prior to killing); Pulliam v. State, 88 Ala. 1, 6 So. 839; Shelton v. State, 217 Ala. 465, 117 So. 8 (); Redd v. State, 68 Ala. 492 (two years); Blue v. State, 246 Ala. 73, 19 So.2d 11 ().
In Patterson v. State, 243 Ala. 21, 8 So.2d 268, defendant had been convicted of murder in the first degree for the death of his wife. Over objection and for the purpose of showing motive, the State was allowed to prove that more than a year and a half before the death of his wife, defendant had been convicted for assaulting deceased and sentenced to the penitentiary for 422 days. The court held that conviction and incarceration for another and former crime is admissible if it reasonably tends to show a motive for the crime for which the accused is on trial. Other courts have admitted evidence of assault, violence, etc., upon deceased by the accused, even though there had been a considerable lapse of time between these acts and the homicide.
In Sayres v. Commonwealth, 88 Pa. 291, Mrs. Sayres was killed by her defendant-husband in November, 1877. Upon his trial for this offense, the court admitted testimony that in 1875 a violent quarrel occurred between defendant and his wife, the deceased. Defendant threw her down the stairs and broke her arm. For this offense he was arrested upon the complaint of his wife, and was convicted and sentenced to imprisonment.
In Koerner v. State, 98 Ind. 7, there was evidence that four years prior to the homicide that defendant hit his wife and threatened her; that for quite a while preceding the homicide, defendant and his wife had had frequent disagreements and quarrels; and that about five months prior to the homicide the defendant's wife filed in his court an affidavit against defendant for assault and battery upon her; and that defendant had paid his fine on a plea of guilty. The court stated:
'The fact that these quarrels, beatings, and threats had extended through a series of years, would not weaken the evidence nor render it incompetent, but rather strengthen it.'
In Commonwealth v. Barnak, 357 Pa. 391, 54 A.2d 865, there was evidence that two months prior to the homicide deceased swore to an information charging her husband-defendant with 'unlawfully making an assault upon her--bruising her, striking and kicking her on the legs, throwing articles at her, and various other things.' The defendant and deceased reached an agreement whereby he would pay the cost of the prosecution and he would not molest her. In this case the court stated:
Deceased had not been living with defendant since she had charged him with assaulting her.
In People v. Bolton, 215 Cal. 12, 8 P.2d 116, there was evidence that more than a year and a half before the homicide the deceased had suffered violent language and physical abuse from defendant, the latter resulting in facial disfigurements to deceased. In allowing this evidence the court stated:
'* * * the remoteness of testimony as to altercations between the defendant and the deceased does not render it inadmissible, but affects its...
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...opinion that the trial court did not abuse its discretion in admitting the threats in evidence. 357 So.2d at 295-296. In Bennefield v. State, 202 So.2d 48 (Ala.1966), Bennefield was convicted for murder in the second degree of his wife. The Court held that evidence of threats and assaults o......
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