Byrd v. State

• Decision Date: 03 January 1952
• Docket Number: 2 Div. 291
• Citation: 257 Ala. 100,57 So.2d 388
• Parties: BYRD v. STATE.
• Court: Alabama Supreme Court

Page 388

57 So.2d 388

257 Ala. 100

BYRD v. STATE.

2 Div. 291.

Supreme Court of Alabama.

Jan. 3, 1952.

Rehearing Denied March 13, 1952.

H. A. Lloyd and W. W. Dinning, Demopolis, for appellant.

Si Garrett, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.

STAKELY, Justice.

Charlie Byrd was indicted for the murder of Neely Trigg. Trial resulted in a conviction and sentence of murder in the first degree. The death penalty was imposed. The appeal comes here under the automatic appeal act.

Evidence for the state tended to show that on, Sunday, October 29, 1950, about 11: 45 A. M. the car of the deceased, Neely Trigg, having run out of gas was parked at the side of a street in the City of Demopolis. The deceased was standing outside of his car smoothing the seat covers on the front seat of his automobile. Charlie Byrd appeared on the opposite side of the street with a single-barrel shot gun. Charlie Byrd called, 'Hey Neely' and shot at the deceased through the window of the car. Charlie Byrd then broke his gun, blew the smoke from the gun and inserted a fresh shell. Dropping to his knees, he fired under the car at the legs of the deceased. He then reloaded his gun, walked across the street around the car and fired a third blast into the head of the prostrate Neely Trigg. As a result of the last shot the whole top of Neely Trigg's head was blown off. Neely Trigg had nothing in his hand and did nothing but dodge around behind his car. No gun or other weapon was found on the person of the deceased or in his car or in the immediate vicinity. Tendencies of the evidence for the state further showed that after the killing, Charlie Byrd attempted to get another man to take him across the river in a boat. Testimony for the state further tended to show that when apprehended Charlie Byrd stated that the deceased had threatened him about eight hours prior to the shooting and had wounded him. He further stated that he was on his way to see a doctor when the shooting occurred. He admitted shooting at Neely Trigg three times.

The defendant testified in substance as follows. I was standing by the side of the road waiting for Sugar (Arthur Samuels) to go to the doctor when a car pulled up by the side of me. This was about 5 or 10 minutes after I left Sugar's house. No one was in the car except Neely Trigg, who was driving the car. The car stopped right across the road from where I was standing. I fell on my knees and fired one time. I started on down the road toward the doctor. He was on the other side of the car from me. The driver's seat was towards me. He got out of the car on the other side. When he drove up he 'had a stare fixed right on me'. He was looking right at me. 'He was staring me right in the eyes'. He started around the car toward me and I dropped to my knees and fired the gun. I jumped up to run towards town and 'he wheeled to come after me'. When he got out of the car he went toward the front of the car. He didn't fall when I first fired nor did he say anything. When I started toward when and 'he come toward the back of the car and I fired again, he said, 'you better make sure you are doing a good job.''

On cross-examination the defendant further testified in substance as follows. While I was standing there Neely Trigg drove up. He was not on the same side of the street where I was. He did not pull his car over to my side of the street. His car was on the opposite side of the street from me. 'Q. And you just hauled off and shot him? A. I did.' The first shot was fired under the car and when he ran behind the car I fired again. I didn't have time to see if Neely Trigg had any weapon in his hand. He pulled up in his automobile and I started shooting, while he was on the other side of the street. When he was asked 'How far in the street did he get?' the defendant answered, 'he got to the front wheel of the car.' The street was wide enough for three automobiles to pass. I didn't see anything in his hand. I didn't see people on the front porch sitting right there. I knew I was shooting at him.

Testimony for the defendant tended to show that on the morning of the shooting between three and four o'clock, about eight hours before the shooting, the defendant came to the house of Mose and Rebecca Earl, asking to be taken into town. He was bleeding and Neely Trigg was at the front gate with a screw driver. The deceased was heard to threaten the defendant at that time. Tendencies of the evidence further showed that the defendant came to the house of one Arthur Samuels about one hour before the shooting when there was another difficulty between the deceased and the defendant. The defendant stayed about twenty minutes and then came back later. Arthur Samuels testified that it was about twenty minutes before the shooting when the defendant left his house on the first visit, but that it was about two minutes before the shooting when he left his house on the second visit. At this last time the defendant had his shot gun with him. Tendencies of the evidence for the defendant showed that the deceased was in the house next door to Arthur Samuels some ten minutes before the killing.

The defendant testified that he and the deceased had a difficulty about eight hours before the shooting and another difficulty about one hour before the shooting. The court excluded details in respect to the difficulty eight hours before the shooting such as for example with regard to defendant's alleged wounds, that 'blood was pouring out (from defendant's head) like you'd pour water our of a bucket.' See White v. State, 209 Ala. 546, 96 So. 709. The court further excluded details of the difficulty one hour before the shooting including evidence by the defendant that he was struck by the deceased with a piece of iron which looked like a jack.

To sum up the situation, the state showed a difficulty between the defendant and the deceased about eight hours before the killing. The defendant was allowed to prove threats in connection with that difficulty and that at that time Neely Trigg had a screw driver in his hand. The court however refused to allow the defendant to prove further details of the difficulty. The defendant was allowed to show a difficulty about one hour before the shooting but was not allowed to show the details of that difficulty, including the claim by the defendant that he was struck by the deceased at that time with a piece of iron which looked like a jack. It is seriously contended by the appellant that the court was in error in excluding the details of the difficulties to which we have referred.

Facts or declarations to be admissible under the principle of res gestae must be substantially contemporaneous with the main fact under consideration and so closely connected with it as to illustrate its character, Dudley v. State, 185 Ala. 27, 64 So. 309; Jackson v. State, 177 Ala. 12 59 So. 171; Moss v. State, 190 Ala. 14, 67 So. 431. It is true, however, that where there is an unbroken chain of events beginning with a prior difficulty and leading up to the killing, the chain of events leading up to the killing need not be a part of the res gestae in the sense that these events became a part of the crime itself, but they are admissible since they lead up to and tend to explain the acts, animus or intent of the defendant at the time he committed the killing. Keith v. State, 253 Ala. 670, 46 So.2d 705; Smith v. State, 253 Ala. 220, 43 So.2d 821; Collins v. State, 138 Ala. 57, 34 So. 993, 994. In Sanders v. State, 242 Ala. 532, 7 So.2d 483, it was pointed out that there is a difference with reference to proof of prior difficulties where the state seeks to introduce such evidence and a situation where the defendant seeks to introduce such evidence. When such evidence is offered by the state showing the conduct of the defendant on the former occasion, it is to illustrate his acts at the time of the fatal difficulty but when it is offered by the defendant it must be subsequent to evidence tending to show self-defense. Such evidence when offered by the defendant is not admissible if he was the aggressor in the difficulty which then and there resulted in the killing. It was further pointed out that when proof of the former difficulty is admissible while details of the difficulty may not be shown, the rule does not exclude proof that the deceased drew a gun on the defendant, as this is not proof of too much detail.

We have carefully considered the evidence with reference to the defendant's claim of self-defense. There was no proof of any weapon in the hands of deceased or that there was any weapon in the car of the deceased or in his immediate vicinity. There was no evidence of any hostile act or demonstration on the part of the deceased toward the defendant at the time of the shooting. The defendant was on the opposite side of the street from the deceased and under the evidence could have retreated without placing himself in any danger whatsoever. Turning toward the...