Brown v. State
| Decision Date | 06 May 1947 |
| Docket Number | 5 Div. 235. |
| Parties | BROWN v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied May 27, 1947.
Reynolds & Reynolds, of Clanton, for appellant.
A A. Carmichael, Atty. Gen., and Bernard F. Sykes, Asst. Atty Gen., for the State.
Appellant was convicted in the court below of murder in the second degree on an indictment charging murder in the first degree.
The alleged homicide was committed in October, 1944. The indictment in the cause was returned in February, 1945. The trial was had in March immediately following. After conviction, a motion for a new trial was filed within the time required by law. This motion was first set for hearing on the 17th day of April, 1945, and was continued from time to time until it was finally heard and overruled on December 7, 1946. The instant appeal was submitted in this court on April 17, 1947.
It will be noted that more than two years intervened from the date of conviction and the time the appeal was submitted here. The record indicates no reason or excuse for this unusual delay. The prompt administration of our criminal laws cannot be promoted and aided by indifference to the procedure incident thereto. In the instant case the long delay is occasioned by the failure of the trial judge to hear and pass on the motion for a new trial.
It appears from the evidence that the defendant, the deceased and one J. P. Wyatt were together on a Sunday afternoon. After riding around in a truck and consuming some whiskey as they journeyed, the trio finally reached the home of the accused. At this time, according to the testimony of the State's witness Wyatt, as the three approached the front steps of the residence after getting out of the truck near by, the deceased grabbed or snatched out of the hand of the appellant a pint bottle partially filled with whiskey. The latter forthwith entered the front door of his home and secured a shotgun. His wife reached him in the hall of the house and tried to take the gun but was not successful. The deceased followed into the dwelling a short period of time thereafter, and as he entered the door and had reached just on the inside the defendant shot him. The wound was fatal, and the wounded man died on the spot. The witness stated that the deceased still had the bottle in his hand, but it was by his side when the gun fired.
The defendant's testimony differed on this point, in that he testified that he told the person he shot not to come into his house, but against these demands he continued to enter and was nearing the defendant with the bottle in striking position when the latter fired the gun. Appellant's wife corroborated some of her husband's testimony, but according to her statement she was not actually present when the gun fired.
This seems to be a sufficient recitation of the tendencies of the evidence for the purpose of illustrative review of the matters before us. It obviously follows that the prime question of factual inquiry centers around a determination of whether or not the accused was acting in self-defense, as he claimed.
It is not often that we review a record of this proportion and find so few objections interposed during the time the testimony was being introduced. The jury and court certainly had the full benefit of all the facts and circumstances incident to the homicide of his nephew for which defendant was being tried. There appears no deep seated motive for the offense. The record discloses that the two participants were not only related as indicated, but were very friendly and congenial up to the eventful afternoon in question.
We are prompted to observe that this is another case, among the many, where strong drink played its part.
Following a free and unrestrained disclosure of all the facts, the trial judge delivered a very full and comprehensive oral charge, and gave twenty-seven written charges, which included every one tendered by the defendant.
For the purpose of illustrating the questions we are now about to review, we will set out a portion of the brief of appellant's counsel. The record verifies the accuracy of the quotation.
'On the cross-examination of the Appellant as a witness in his behalf, the following took place: The testimony showed that the Appellant was in Selma the night before and the Appellant was asked the following questions and made the following answers:
It will be observed that to some of the questions above the objections came after answers were given and to some the response was in the negative and favorable to the objector. Error cannot be predicated where these situations appear. Smith v. State, 16 Ala.App. 546, 79 So. 802; Kelley v. State, Ala.App. 26 So.2d 633; Edmonds v. State, 16 Ala.App. 157, 75 So. 873; Russell v. State, 17 Ala.App. 436, 87 So. 221.
We entertain the view that whether or not the appellant was drinking in Selma the night before the homicide related to a matter of immaterial inquiry; and this is true, in our opinion, even on the cross-examination of the defendant.
We are faced with the duty, however, to determine if this disclosure was harmful to the accused on the trial. The onus rests upon the appellant not only to show error by the record, but that such error probably injuriously affected his substantial rights. Mosley v. State, 241 Ala. 132, 1 So.2d 593; Kabase v. State, 244 Ala. 182, 12 So.2d 766; Supreme Court Rule 45, Code 1940, Title 7 Appendix; Henderson v. Tennessee Coal, Iron & R. Co., 190 Ala. 126, 67 So. 414.
In brief able counsel cogently urges that this forced admission placed the appellant in an unfavorable and prejudicial position before the court and jury. It is without dispute in the evidence that the defendant was drinking on the afternoon the homicide occurred. This he admitted. In the light of this disclosure, we cannot conclude that he was substantially injured in the defense of the charge by proof that on the night before he was also drinking.
We have a long line of authorities, some of which are cited by counsel, which hold that it is error to show that a person was drunk or drinking on an occasion too remote in point of time to affect his sobriety vel non at the happening of the main event. In these cases the inquiry as to the intoxication of the party at a designated and particular time was a matter of material factual finding. Of course, it was permissible to show by the evidence in the instant case that the accused was drinking on the occasion of the assault which resulted in the death of the deceased. However, the appellant having admitted this fact and there being no question as to its truth, it could not be harmful to the defense of the defendant to require him to answer the questions about which complaint is made. Unquestionably, this is an appropriate and purposeful...
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