Burnett v. State, 8 Div. 292
| Decision Date | 26 February 1980 |
| Docket Number | 8 Div. 292 |
| Parties | Willie Clarence BURNETT v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Harvey B. Morris, Huntsville, for appellant.
Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
On an indictment charging murder in the first degree, a jury found appellant guilty of manslaughter in the first degree and fixed his punishment at imprisonment for ten years. He was sentenced accordingly.
The alleged victim was Nora Banks who was killed by a pistol bullet that entered her skull from front to rear. This occurred while she was in the home of defendant while a drinking and dancing party was in progress in which five or six adults and three or four times as many children were present on Sunday night, April 29, 1979. She arrived after most of the others and was accompanied by a man who later left the house without her. She and some others present left temporarily to obtain alcoholic beverages. She didn't seem to get along well with the others. She engaged in separate arguments with two of the women. State's witnesses testified that the party came to an abrupt halt when they heard a gunshot in another room. Upon hearing the gunshot, they immediately left the house, all except some children, appellant, Nora Banks, and Dennis Scott, seventeen years of age, who testified he had not been drinking.
Dennis Scott further testified he heard the appellant tell Nora Banks "to throw her gun out and come out of the bathroom," and then he heard a shot. He said he heard appellant tell Nora Banks again to come out of the bathroom and that some time thereafter he heard a second shot, and possibly a third shot. Upon hearing the last shot, the witness said he "went back in there" where the shots were fired and saw Nora Banks on the floor and the appellant with a pistol in his hand, and that thereafter appellant said "he was going to call the ambulance and police."
The body of the victim was left lying on the floor until officers arrived. They found and removed a fully loaded .32 caliber pistol from her clothing. A witness for defendant, Joe Ed Kelly, Jr., fifteen yeas of age, testified that after Nora Banks had finished arguing with his mother, she started for the bathroom and at that time pulled a pistol. He said that he then told appellant that "she was getting the gun."
Appellant testified that he heard Joe Ed Kelly, Jr., say "she was getting that gun," and he tried to stop Nora Banks by grabbing her arm, but he didn't succeed. He said he then went to his bedroom and took his pistol out of the drawer, then went back into the hall and asked Nora Banks to "throw her gun out." According to his further testimony, Nora Banks made no response, and he shot into the floor "to let her know (he) had a gun;" that he asked her again to throw her gun out and she did not do so. Then Nora Banks unlocked the bathroom door and came out cursing appellant, with her hand in her purse. He said he then "backed back" and fired.
No contention is made on appeal that the evidence was not sufficient to justify the verdict. We see no reasonable basis for such a contention. Even though there was evidence to show self-defense, the jury was justified in concluding that some of the elements of self-defense were lacking. The evidence is almost conclusive that deceased did not have a pistol in her hand at the time she was shot by defendant.
Appellant argues that the court erred in refusing to admit testimony "relating to the bad reputation of the victim for carrying a gun." While the witness Joe Ed Kelly, Jr., was being cross-examined, he was asked by defendant's counsel, "Did you know her (Nora Banks) reputation in this county for being a gun carrier or gun toter?" State's counsel then said, The court then said, "Sustained." On cross-examination of Mrs. Mae Kelly, she was asked by defendant's counsel, "Did you know her (Nora Banks) reputation in the community for carrying a gun?" State's counsel then said, "Judge, I object," and the court said, "Sustained."
There was no evidence that defendant knew the general reputation of the deceased. There was no offer on the part of defendant to show that he knew or had been informed of the reputation of deceased for carrying a gun.
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