Bush v. State

Decision Date04 April 1968
Docket Number6 Div. 423
PartiesJack A. BUSH v. STATE.
CourtAlabama Supreme Court

Rogers, Howard, Redden & Mills, Birmingham, for appellant.

MacDonald Gallion, Atty. Gen., and Robt. F. Miller, Asst. Atty. Gen., for the State.

HARWOOD, Justice.

The appellant stands adjudged guilty of murder in the first degree with punishment being fixed at imprisonment in the penitentiary for life. The victim of the homicide was Nora Ann Bush, the wife of the appellant.

On the day of the killing the appellant returned to his home from his job as a mechanic for a Birmingham motor company. His wife was anxious to go out for the evening, in accord with prior arrangements with Mr. and Mrs. C. L. White. The appellant demurred, saying he was tired. According to the appellant, his wife had been drinking when he arrived home. The appellant finally agreed to join the Whites, and the Bushs drove to the White home arriving there between 7:30 and 8:00 P.M. At the White home the parties had one or more drinks and then proceeded to the Elks Club in Fairfield in the White's automobile. At the Club the two couples had dinner, and continued to have drinks. Following dinner, they danced. During the entire evening it is inferable from the record that Mrs. Bush, the deceased, was in an antagonistic attitude toward her husband, evidencing this antagonism by obscene and profane epithets addressed to him.

Shortly after midnight the Bushs and the Whites left the Elks Club, at the importuning of the appellant. Just before their departure Mrs. Bush poured a glass about two-thirds full of whiskey and drank it straight.

After leaving the Elks Club, the appellant drove the White's automobile, and the deceased occupied the front seat with him, the Whites occupying the rear seat.

On the drive from the Elks Club to the Bush's apartment, an argument developed between the appellant and his wife and Mrs. Bush grabbed the appellant's leg and pinched it severely. Thereupon the appellant struck at his wife with the back of his hand, resulting in a fingernail cut on his wife's nose. While this wound was small it caused considerable bleeding.

Arriving at the Bush's apartment, they drove to the rear. Mr. White and the appellant helped Mrs. Bush into the apartment kitchen where she was placed upon a table.

Mrs. White attempted to wash off Mrs. Bush's face and stop the bleeding from the nose wound. The appellant remonstrated with the Whites about their loud talking and noise and requested them to leave. When the Whites did not depart the appellant went into another room in the apartment and returned with a 22 cal. rifle. He again requested the Whites to leave and they did so. At this time, Mrs. Bush was still lying on her side on the kitchen table.

The Whites drove to police headquarters at Ensley and reported the situation to the police. Two police officers, Glenn and Chambers, went to the apartment. Receiving no answer to the knock on the front door, they entered the Bush apartment through the back door.

They found Mrs. Bush lying on her side on the table with a bullet wound near the inner side of her right eye. In the living room they found the appellant in a semiconscious state with a bullet wound on the right side of his neck. The evidence shows that the bullet exited in the mastoid process behind the appellant's left ear. The appellant could not speak and was bleeding from the mouth.

When the officers returned to the kitchen the appellant crawled into the kitchen. He then pointed his finger at his wife, and then at himself, and moved his thumb in a manner indicating the firing of a gun. The appellant then made motions with his hands indicating writing materials. At this time Officer Chambers testified he informed the appellant that anything he said could be used in court against him, and of his right to counsel. A pen and paper were given to appellant and he wrote thereon:

'Father

'Graysville

'J. R. Bush

'O R 45131'

Over appellant's objection, this writing was admitted into evidence as State's Exhibit B. Before leaving the apartment the appellant was advised that he would probably be charged with a felony.

The officers then called an ambulance and the appellant was conveyed to the Lloyd Nolan Hospital and the officers followed in their automobile.

Upon arrival at the hospital, the appellant received emergency treatment and was then taken to a hospital room.

Mrs. McMeans, the nurse in charge of the appellant, asked him his name, and he again made writing motions. Being furnished pen and paper, he wrote the following:

'I Jack Bush shot my wife Nora Ann Burleson 3309 Walnut Avenue S. W. Signed Jack Bush.'

Over the appellant's objection, this paper was received in evidence as Exhibit D.

Shortly after the appellant was admitted to the hospital room, Det. Pierce of the homicide squad arrived, accompanied by Coronor Allen. Officers Glenn and Chambers and Mrs. McMeans, the nurse, were in the room at the time. Det. Pierce asked the appellant what had happened and again the appellant went through the writing motions with his hands. Being furnished with pen and paper, he wrote:

'My wife was a lady.

'I was a mad MaN and kill her.'

This paper was introduced in evidence over the appellant's objection as Exhibit C.

At the same time appellant wrote on another piece of paper:

'Jack Bush

'Father

'J. R. Bush

'O R 45131

'Graysville'

This writing was received in evidence over appellant's objection as State's Exhibit E.

In his own behalf the appellant testified that the shot which killed his wife was fired accidentally. Upon the Whites' departure, he had returned to the table where his wife was lying in an attempt to assist her. He had laid the rifle on the table along side his wife. He noticed that some blood and water was about to run off the table onto the floor and he grabbed a towel to mop up the fluid. In doing this, he hit the rifle and grabbed it to prevent it from falling on the floor, and in this process the rifle discharged.

The appellant further testified that he did not remember being shot himself and did not remember anything that happened after his wife was shot until several days later.

Mrs. White testified that during the argument between the appellant and Mrs. Bush on the ride from the Elks Club to the Bush apartment, the appellant had stated to his wife that he was tired of her embarrassing him and he twice said that 'he was going to shoot her between the eyes when he got her home.' Mrs White's testimony in this aspect came in without objection.

Mr. White was also called as a witness by the state. It appears that Mr. White is hard of hearing. At one point during the argument between the Bushs, Mr. White asked Mrs. White what the appellant had said and she answered in a normal tone of voice and while no other conversation was going on in the car that 'he had said he would put a bullet between her eyes when he got her home.' The above testimony by Mr. White was admitted over the strenuous objection of the appellant that the same was hearsay.

The record shows that Mrs. White at the latter part of the trial was recalled as a witness and was examined at length, but the matter of her informing Mr. White as to the appellant's statement concerning putting a bullet between Mrs. Bush's eyes was not touched upon.

Counsel for appellant contends that error infects the record because of the court's action in overruling appellant's objection and allowing Mr. White to testify as to Mrs. White's answer to his inquiry concerning what appellant had said to his wife. Counsel for appellant asserts that this evidence was pure hearsay.

Counsel for the state counter this argument with the theory, argued at length, that Mrs. White's statement was in the presence of the appellant, was spoken in a normal tone, and was accusatory in nature and appellant's silence was a tacit admission of its truthfulness.

We see no need to write to the state's argument in that we are of the opinion that no error attached to the ruling in this instance for the following reasons.

Mrs. White had testified without objection as to appellant's statement to his wife. Mr. White's testimony was of the same import. It was therefore but cumulative of Mrs. White's testimony.

It is not error to allow the same facts to be again shown against objection when they have already been proven without objection. Purser v. State, 39 Ala.App. 169, 96 So.2d 689; Brown v. State, 33 Ala.App. 152, 31 So.2d 652; Zorn v. State, 20 Ala.App. 404, 102 So. 722. See also Alston v. State, 248 Ala. 163, 26 So.2d 877.

Further, as demonstrated by Wigmore, the essence of the Hearsay Rule is the requirement that testimonial assertions be subjected to the test of cross examination. See Wigmore on Evidence, 3rd Ed., Vol. V., Sec. 1362(2) at page 7.

Here Mrs. White had testified prior to Mr. White. She testified later in the course of the trial after Mr. White's testimony. Thus there was confrontation under oath, with a full opportunity to cross examine Mrs. White relative to the statement attributed to her by Mr. White, and to which she had already testified without objection. Thus the very basis and essence for invoking the Hearsay Rule is absent. Where the reason for a rule fails, the rule itself falls.

Counsel for appellant contend that the lower court erred in admitting Exhibits B, C, D, and E, being the notes written by the appellant under the circumstances above outlined.

Exhibits B and D are not inculpatory in any sense, and merely show the name, address, and telephone number of appellant's father. No probable injury to any substantial right of the appellant could have resulted from the admission of these exhibits.

In considering whether error to reverse resulted from the admission of Exhibits C and D, which are inculpatory, it must first be noted the trial of this case was begun on 11 October 1965, with a verdict being returned on 15 ...

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    • United States
    • Alabama Court of Criminal Appeals
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    ...to allow the same facts to be again shown against objection when they have already been proven without objection.' Bush v. State, 282 Ala. 134, 139, 209 So.2d 416 (1968)." Thomas v. State, 520 So.2d 223, 225 For the reason stated in Part IV of this opinion, this cause is remanded with direc......
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