Blue v. State, 6 Div. 211.

CourtSupreme Court of Alabama
Writing for the CourtSTAKELY, Justice.
Citation246 Ala. 73,19 So.2d 11
PartiesBLUE v. STATE.
Docket Number6 Div. 211.
Decision Date29 June 1944

Rehearing Denied July 25, 1944.

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, judge.

Ross Ross & Ross, of Bessemer, Beddow, Ray & Jones, of Birmingham, and G.P. Benton, of Fairfield, for appellant.

Wm N. McQueen, Acting Atty. Gen., and John O. Harris and Geo. C Hawkins, Asst. Attys. Gen., for the State.

STAKELY, Justice.

Appellant was tried under an indictment charging murder in the first degree. He was convicted of murder in the second degree and his punishment fixed at imprisonment in the penitentiary for a term of fifty years. This appeal is from the judgment of conviction and the sentence rendered thereon.

In the course of the trial, the court was called upon to make numerous rulings. It is claimed by appellant that there is error in many of these rulings. Based on these rulings, the contentions of appellant may be summarized as follows: (1) The method of drawing and impaneling the jury is illegal since the statutes providing for the procedure which was followed are unconstitutional and void. (2) The defendant was entitled to the general affirmative charge. (3) The defendant did not receive a fair and impartial trial, since the trial was had in an atmosphere of prejudice and bias. (4) The court was in error in various rulings on the evidence.

The record shows that in drawing and impaneling the jury, the procedure which was followed is the procedure provided exclusively for Jefferson County by §§ 196 et seq., Title 62, Code of 1940. It is claimed that these statutes are unconstitutional and void, as being violative of §§ 106 and 110 of the State Constitution and as infringing the 14th Amendment of the Constitution of the United States. It is further claimed that the procedure which should have been followed is provided in §§ 30 et seq., Title 30, Code of 1940. The constitutional questions were aptly presented, as for example by motion to quash the venire, which was overruled by the trial court. All of these constitutional questions were recently considered by this court in the case of Burns v. State, 19 So.2d 450. On the authority of that decision, the court was not in error in upholding the method of drawing and impaneling the jury. Further discussion of this feature of the present case is unnecessary.

It is insisted by the appellant that there was not sufficient evidence in the case to support a conviction. If this is true, then the court was in error in refusing to give the general affirmative charge and in overruling the motion for a new trial so far as it was predicated on the weight of the evidence and on the court's action with reference to this charge. In passing on the question here presented, it is well to bear in mind some fundamental principles. A mere scintilla of evidence is not sufficient to justify a submission to the jury. On the contrary, "there must be substantial evidence tending to prove all the elements of the charge."

"After an examination of the authorities, we have been unable to find any decision of this or any other court of last resort that has invoked the 'scintilla rule' to uphold a criminal prosecution.

* * * * *

"These utterances are clearly inconsistent with the thought that a mere 'gleam,' 'glimmer,' 'spark,' 'the least particle,' 'the smallest trace,'--'a scintilla'--is sufficient, in the face of the presumption of innocence, to require the court to submit the issues in a criminal case to the jury, and the scintilla rule, in this sense, does not apply to criminal prosecutions. There must be substantial evidence tending to prove all the elements of the charge." Ex parte Grimmett, 228 Ala. 1, 2, 152 So. 263, 264.

See also Inge v. State, 28 Ala.App. 38, 178 So. 453; Id., 255 Ala. 280, 178 So. 454; Willis v. State, 29 Ala.App. 365, 369, 197 So. 62; Id., 240 Ala. 52, 197 So. 67.

But it is equally true that where there is evidence of a substantial nature tending to establish the material issues of the case, then the affirmative charge should be refused. Hargrove v. State, 147 Ala. 97, 41 So. 972, 119 Am.St.Rep. 60, 10 Ann.Cas. 1126. It therefore becomes necessary to examine the evidence to see if it meets the requirements of the principles stated above.

Tendencies of the evidence showed the following: The defendant, Dr. James Howard Blue, and his wife, Laura Blue, deceased, lived at Bessemer in their home on the northeast corner of Dartmouth Avenue and 21st Street. The house faced West and ran back East along 21st Street. The living room was across the front of the house and running back East from the living room on the right side of the house was a hall, entered by a door from the living room. Back of the living room on the left side of the house were the dining room, breakfast room and kitchen. Proceeding East toward the back of the house along the hall there was a door entering to the right which gave access to the bedroom of defendant, and adjoining it was the bedroom of his wife, which was entered by a door from the hall just beyond the door opening into defendant's room. Along the wall to the right just before the entrance to defendant's bedroom was a bookcase 4 1/2 feet high, 34 inches long and 12 inches deep, and the distance from the nearest end of the bookcase to the living room was 8 1/2 feet. The hall is about 45 or 46 inches wide. The shotgun, which will be hereinafter referred to, is 46 inches long and requires the trigger to be pulled each time the gun is fired.

On the night of May 23, 1943, a neighbor who lived on the corner directly across 21st Street, while lying in bed reading, the windows being opened, around 10:00 P.M. heard three shots ring out in rapid succession, with uniform spacing of time between the shots. The shots came from the Blue home, where the lights were on. This witness saw no one come out of the house.

We go now to the testimony of the defendant himself. The defendant testified in substance as follows: At about 9:45 P.M. he retired to his own bedroom, turned out its lights, but leaving on the lights in the living room, kitchen and dining room. While asleep he was awakened when his wife entered his bedroom and turned on the light by a switch which was located on the wall near the door. His wife approached a little table about two feet to the right of the bed upon which defendant was lying. There was a 16-gauge gun located immediately behind the table. As she approached the bed, table and shotgun, she said: "I am going to kill you and kill myself and end it all," and she reached and got the gun. Immediately defendant got out of bed. Mrs. Blue backed out of the bedroom into the hall and upon entering the hall, she turned to her right and went toward the living room. She shot up the hall toward the living room. The content of the shell went through a pane of glass located in a window in the living room immediately next to the street. The defendant came out the door of his bedroom into the hall, following the deceased, the space intervening between them being about 3, 4 or 5 feet. Immediately after the gun was discharged the first time, the deceased turned and fired again, the content of that shell entering the top of the bookcase, which was introduced in evidence. When the second shot was fired, defendant was in a crouched position. He grabbed the barrel of the gun and pushed it up, forcing the stock down and pushing the barrel away from him. He testified: "I don't know just what the maneuvers of the gun were." According to his best judgment, he took hold of the barrel of the gun with his left hand. During the struggle there was a third explosion of the gun and the content of that shell entered the left side of the head of the deceased immediately in front of the left ear. A portion of the content of the last shell struck the ceiling immediately over the point where the defendant and the deceased were struggling over the shotgun. After the shooting, defendant placed the gun in the closet in his bedroom. Only defendant and his wife were in the house at the time.

Now turning from the testimony of the defendant, tendencies of the evidence further show that the defendant called the Brown Service Funeral Home around 10:00 P.M. and George Garner, an employee, answered the 'phone. The witness Garner swore that the defendant asked for Tom McCollum, who is the resident manager of the funeral home, and who was special investigator to the County Commission, performing the duties of coroner, and who has also been for more than twenty years a close personal friend of the defendant. The witness replied that McCollum was not there and asked if he could be of help. Defendant said he did not know, that he thought he needed two or three ambulances and needed them at the mines, and asked Garner if he knew him. Garner told defendant that he did and asked if he should send the ambulances. Defendant asked him for McCollum's residence telephone number, which he gave the defendant. Defendant did not in this conversation indicate in any way that his wife had been shot and was dead.

About 10:20 defendant called the witness McCollum over the telephone and on being asked by McCollum what was the trouble, replied "that it had happened," and when asked by the witness what had happened, the defendant said, "Come on up and see," whereupon the witness immediately went to the Blue home. On reaching the Blue home, he asked the defendant what had happened and the defendant told the witness "to see for himself." The witness again asked him what had happened and the defendant again told him "he could see for himself if he would walk down the hall."

Going into the hall, the deceased, wife of the defendant, was found lying on her back in the hall along the...

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