Burton v. State

• Decision Date: 30 June 1915
• Docket Number: 734
• Citation: 194 Ala. 2,69 So. 913
• Parties: BURTON v. STATE.
• Court: Alabama Supreme Court

69 So. 913

194 Ala. 2

BURTON v. STATE.

No. 734

Supreme Court of Alabama

June 30, 1915

Rehearing Denied Nov. 18, 1915

Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.

William C. Burton was convicted of murder in the second degree, and he appeals. Affirmed.

Hugh Reed and W.J. Lumpkin, both of Centre, for appellant.

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

MAYFIELD J.

Defendant was indicted for the murder of his father, and was convicted of murder in the second degree and sentenced to the penitentiary for 30 years.

At the time his father was killed the defendant and deceased were alone, riding in a buggy. The father was shot through the head, the ball entering under one ear and coming out above the opposite eye. Deceased was shot while in the buggy, or while attempting to alight therefrom, and, on being shot fell from the buggy, and was by the defendant placed back in the buggy and carried to the store of Snead, about half a mile distant from where the shooting occurred, where he died within a few minutes. Only one ball or bullet penetrated the body of deceased.

There was some difference in the evidence of the witnesses as to the probable size or caliber of the ball which inflicted the wound, this evidence varying the size from a 32 to a 44 caliber ball. The evidence of the state tended to show that the wound was inflicted by a 32 or a 38 caliber ball, while that of the defendant, tended to show a 41 or a 44 caliber. The particular relevancy and materiality of this evidence was due to the undisputed fact that the defendant had with him on the fatal occasion, a pistol which was of a 32 or a 38 caliber.

The defendant's version of the killing was that he and his father, both of whom lived in Georgia near the line of Alabama, were over in Alabama to see some men for the purpose of swapping horses, and that while driving along the public road in a sparsely settled part of the country, and in a secluded spot in the road, they were approached by a highway robber, who hailed them and asked the defendant for a match, which request being granted, the highwayman stuck a pistol in the face of defendant and compelled him to stand up in the buggy, and searched him for money; that the robber found no money, but did take the pistol of defendant, which was on the seat under defendant; that the robber then ran his hand into the pocket of the father and took from him his pocketbook, and that the father then arose from his seat in the buggy and attempted to alight, saying that he would die before any one should take his money in that manner, or words to this effect; that the robber then fired the fatal shot into the head of the father, who fell back into the buggy, and that the horses jumped and the father fell from the buggy, the hind wheels of the buggy running over his legs; that defendant stopped the horses as soon as he could and, going back, raised his father in his arms and placed him in the buggy, and drove at once to Snead's store, where his father died; that his father never spoke after he was shot; that the robber, after firing the shot, went off through the woods.

Dogs were obtained as soon as possible, which was late in the afternoon, the shooting having occurred about 10 o'clock a.m. There was evidence to the effect that these dogs took a trail, near the scene of the shooting, moving in the direction in which the defendant says the robber went, and followed it to a nearby barn, which was searched by the hunting party with the permission of the owner, but no one was found. The owner testified that about this time he lost a bridle from the barn, but did not know who got it. There was also testimony to the effect that the track of some one was seen in the woods, or near the road, and between the scene of the killing and the barn in question, and likewise evidence to the effect that a strange-looking man was seen in the road a mile or two from where deceased was shot, and on the same day of the shooting, and that this strange man corresponded somewhat in appearance to the robber described by the defendant.

The defendant, on arriving at Snead's store, or soon thereafter, told several different persons of the circumstances attending the killing of his father--in the main, what he testified afterwards on the trial. The evidence for the state, however, did tend to show contradictory statements by defendant as to the description and size of his own pistol and of the pistol of the robber, and as to the presence of blood and mud in the road at or near the scene of the shooting, and as to blood and mud on the clothing and shoes of the defendant. A pistol was found in the woods, near the scene of the shooting, with one empty chamber, which pistol corresponded to the description which the defendant had given of his own pistol. According to the defendant's statement, the robber shot his father with the pistol of the robber, and not with that of the defendant; but the defendant claimed that he always carried his pistol with one chamber empty. There was evidence tending to show other contradictory statements by the defendant as to the circumstances...