Bullington v. State

• Decision Date: 15 June 1915
• Docket Number: 233
• Citation: 13 Ala.App. 61,69 So. 319
• Parties: BULLINGTON v. STATE.
• Court: Alabama Court of Appeals

69 So. 319

13 Ala.App. 61

BULLINGTON v. STATE.

No. 233

Court of Appeals of Alabama

June 15, 1915

Appeal from Circuit Court, Franklin County; C.P. Almon, Judge.

William Bullington was convicted of manslaughter, and he appeals. Affirmed.

The following charges were refused to the defendant:

"(21) In considering the evidence of the defendant while you may look to the fact that he is the defendant, yet that must not render him less creditable than he would be if he were not the defendant."

"(25) The state is bound to prove the guilt of the defendant fully, clearly, satisfactorily, and to a moral certainty before you will be authorized to find the defendant guilty."

"(31) If you are unable from all the evidence to determine beyond a reasonable doubt and to a moral certainty how the killing occurred, you ought to find the defendant not guilty."

"(47) Evidence of the character of the deceased as a quarrelsome or dangerous man is always admissible for the purpose of illustrating the circumstances of the killing since a demonstration or overt act or attack made by such a man may afford much stronger evidence of imminent peril to the life or limb of the person assailed than when made by a person of opposite character or disposition."

"(49) An act performed by a troublesome, fussy, and dangerous man may afford muck stronger evidence that the life of the person assailed was in imminent peril than if performed by one known to possess an entirely different character and disposition, and might very reasonably justify a resort to a more prompt means of self-preservation."

"(66) If the guilt of the defendant depends on the evidence of the state's witness Bozeman, and if you find that he has sworn falsely in a material matter testified to then you may disregard his testimony entirely, and in which event you should return a verdict of not guilty."

"(BB) If a man has been threatened by another, and he honestly believes, and there are reasonable grounds for him to believe, that the deceased intended to take his life, or to inflict upon him great bodily harm, then such person would have the right to arm himself for self-protection, provided his purpose was merely to defend himself from an assault, or an attack from such person so threatening him. Under such circumstances, a person thus threatened would have a right to go to places where the party who thus threatened his life then was, if such going was upon or for the purpose of attending to business. In other words, a person does not have to abandon his business, and secrete himself."

W.L Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

BROWN J.

The appellant was indicted for murder in the first degree for killing Walter Berry, was tried and convicted of manslaughter in the first degree, and sentenced to the penitentiary for a year and a day as a punishment for the offense, and appeals.

The killing occurred in the public road in front of the defendant's mill, and the evidence offered by the state tended to show that, while Berry was traveling along the road passing by the mill, the defendant, who was watching, in ambush with others, shot him to death without provocation, while that on the part of the defendant tended to show that the deceased, while passing along the road by the defendant's mill, discovered the defendant with a gun, and, using a vile epithet, called upon defendant to drop his gun, and at the same time acted as though he was drawing a pistol from concealment on his person, and the defendant shot him. The evidence showed that the deceased in fact was not armed, and indicates that the cause of the tragedy originated in a disagreement between the defendant and the deceased over the division of a crop while the deceased was a tenant on the defendant's farm, resulting in enmity between them, and as a result of this enmity the deceased had threatened the defendant's life and been guilty of menacing conduct toward him, and through a spirit of fear or of retaliation the defendant waited his opportunity and killed the deceased while he was passing by the mill unarmed.

The court did not err in sustaining the objection of the solicitor to the question asked the state's witness John Smith on cross-examination, eliciting testimony to the effect that defendant had made arrangements to go to Littleville that day. The witness had just testified that he was with the defendant just before the shot was fired that killed the deceased, and that he, witness, knew that defendant was arranging to go to Littleville when he, witness, left the defendant.

The witness Dennis Smith testified that he heard the report of the gun fired by the defendant at the deceased immediately after defendant left him and went under the ginhouse, and that the sound from the gun was "a kind of dead sound." The witness also testified that he had heard shotguns often, and had heard lots of gunshots, and was competent to answer the question, "When a gun is shot in the open air, what kind of a sound does it make?" All persons are more or less familiar with the character of sound that results from firing a gun, and no peculiar skill or experience is required to qualify a witness to testify to such fact. One who has heard such sounds may describe them. L. & N.R.R. Co. v. Sandlin, 125 Ala. 585, 28 So. 40; Underhill, Cr.Ev. § 334; Williams v. State, 147 Ala. 10, 41 So. 992.

The witness William Walter Berry was shown on the voir dire examination to be competent to testify as a witness, and his testimony was properly admitted. Bone v. State, 8 Ala.App. 59, 62 So. 455.

The fact that the father of the witness Alonzo Bozeman signed a bail bond for the deceased some time before he was killed was wholly immaterial to the issues in the case. It does not appear that the witness was a member of the father's family, or otherwise under his domination, but tends to show that the witness was himself the head of a household. Therefore the friendly relation of the father with the deceased would not show bias on the part of the witness. McAlpine v. State, 117 Ala. 94, ...