Birchfield v. State

• Decision Date: 26 January 1928
• Docket Number: 5 Div. 964
• Parties: BIRCHFIELD v. STATE.
• Court: Alabama Supreme Court

115 So. 297

217 Ala. 225

BIRCHFIELD v. STATE.

5 Div. 964

Supreme Court of Alabama

January 26, 1928

Appeal from Circuit Court, Chambers County; S.L. Brewer, Judge.

Johnnie Birchfield, alias Burchfield, was convicted of murder in the first degree, and he appeals. Affirmed in part, and remanded for proper sentence.

Refusal of charge covered by court's oral charge is not error.

Defendant was charged with the killing of Howard Dudley by shooting him with a gun or pistol. The defense was not guilty and not guilty by reason of insanity.

The deceased was a boy of 15 years. Returning from school on the school truck, he debarked at a point about a quarter of a mile from his home, shortly before sundown on a Monday afternoon. His body was found the next morning between 7 and 7:30 o'clock, near a creek a mile and a half distant from the point where he alighted from the truck the evening before. His death, it appears, was caused by a bullet wound the bullet entering through the ribs to the left of the end of the breastbone and lodging below the right shoulder blade. There was a place, some four feet around, near by the body that had been "trampled around," where the grass was mashed down, and a trace chain lying close by.

The driver of the truck testified that deceased was wearing a cap, a red sweater, and overalls. State's witness Davis testified that on Monday afternoon he saw two parties crossing a field, coming from the direction of the big road and going toward the place where Dudley's body was found that one was larger than the other; and that it looked to witness like one was pulling or pushing the other. Over defendant's objection, this witness was permitted to testify to having examined, the following morning, the tracks made by these parties; that "it looked like one was a large track; a man's track and a boy's track; they were wearing shoes; *** the largest one was about a seven or eight, I reckon, and the other one, I suppose, was about a six, maybe;" and further to some peculiarities he noted about the tracks.

State's witness Mrs. Davis testified that she saw the two parties going across the field on the afternoon in question; that one wore a light colored suit and a tan or light brown sweater and a light cap, and that the smaller one wore a red sweater. Over defendant's objection, this witness testified that:

"They were just scuffling along a little. *** They were just pulling each other or pushing."

Another witness testified to having seen two parties cross the field one larger than the other, the smaller wearing a red sweater, the larger dressed in lighter colored clothing, gray or tan.

Witnesses for the state testified that they saw defendant after dark on the Monday evening in question, and that he was trying to get some one to carry him in a car to his brother's, in Roanoke.

Witness Manley testified that he drove defendant to his sister's, in Roanoke, and saw a pistol in defendant's pocket.

Witness Birdsong testified that he saw defendant in the depot at Standing Rock (9 miles from Roanoke); that some others were present; that witness did not offer him any inducement, or hold out any hope of reward or make any threats to get him to talk; that defendant came in and said, "Let me sell one of you all a good gun"; that one of them said, "What do you want for it?" that defendant said "$6," and pulled the gun out of his hip pocket when witness saw an "empty hull"; that defendant said, "That's one time I shot too many, I killed a fellow yesterday evening;" that one boy asked where and defendant didn't say where, but said, "I had a chain, and started to throw him in the creek, and decided not to do it, and made him lay down, and shot him once in the heart;" that defendant further said, "He had been mad with this fellow 6 months, and every time he would see him the madder he got with him."

Witness Tatum testified that he, with three others, found defendant in a loft, about a quarter of a mile from the scene of the crime, and brought him to jail. Over defendant's objection he testified that neither of them, on the trip or anywhere else, held out any hope of reward or any inducements, made any threats or made any promises to the defendant to get him to talk; that defendant said, in substance, that he had forced deceased to go with him to the place where the body was found and had killed deceased because of an "old grudge." This witness testified that there were 12 or 15 persons present when defendant was taken, but that witness and 3 others carried defendant in a car to the jail.

Witness Lindsay, one of those in the car with Tatum, after predicate laid testified to the statement made by defendant.

Defendant's evidence tended to show that he was not of sound mind.

In his closing argument to the jury, the solicitor stated:

"He was pulling and pushing this boy across the field, and there was evidence there of his kidnapping this boy."

Defendant's objection to, and motion to exclude, this argument was overruled.

Charge 1, given for the state, is as follows "Every person charged with a crime is presumed to be responsible for his acts, and the burden of...