Caldwell v. State

• Decision Date: 15 August 1968
• Docket Number: 6 Div. 470
• Citation: 282 Ala. 713,213 So.2d 919
• Parties: Floyd Alexander CALDWELL v. STATE.
• Court: Alabama Supreme Court

Page 919

213 So.2d 919

282 Ala. 713

Floyd Alexander CALDWELL v. STATE.

6 Div. 470.

Supreme Court of Alabama.

Aug. 15, 1968.

Rehearing Denied Sept. 26, 1968.

St. John & St. John, Finis E. St. John, Jr., Finis E. St. John, III and George L. Beck, Jr., Cullman, for appellant.

MacDonald Gallion, Atty. Gen., and Lloyd G. Hart, Asst. Atty. Gen., for the State.

HARWOOD, Justice.

Under an indictment charging murder in the first degree a jury found this appellant guilty of murder in the second degree and fixed his punishment at confinement in the penitentiary for thirty years. Judgment was entered pursuant to the verdict, and appellant's motion for a new trial being overruled he perfected this appeal from the judgment of conviction and the judgment on the motion for a new trial.

The evidence tends to show that the appellant has a parked trailer on Smith Lake in Cullman County, and often spent weekends at the lake. He has a pistol range at his place which is used by him and his neighbors.

The appellant went to his trailer on 12 November 1966, which was a Saturday. Sunday morning he prepared breakfast and drank some vodka he had brought with him.

The appellant then went to the home of Other Handley, from whom he had purchased whiskey on two prior occasions, to obtain some whiskey. Handley had no whiskey for sale, but offered appellant a drink of corn whiskey from a bottle he had on his person. Handley and appellant had a drink or drinks and Handley told appellant where he might buy some whiskey.

Appellant suggested that Handley go with him and Handley agreed to do so, but asked if he could take his girl friend along. The appellant assented to this arrangement and the appellant, Handley, and Marie Davis Smith got into appellant's truck and drove off. Marie Davis Smith wound up on a rural trash dump with a fatal bullet wound in her chest.

She had arrived at Handley's residence the previous morning, and had been drinking prior to her arrival. She and Handley entered upon a drinking spree interlaced with episodes of sexual intercourse, and trips to obtain more alcoholic beverages.

The appellant, Mrs. Smith, and Handley, made a circuitous drive through the southern portion of Cullman County before locating a whiskey seller. Eventually they obtained a gallon jug of corn whiskey. They then drove haphazardly along rural roads, making several stops, when they would pour the whiskey from the gallon jug into a pint bottle and therefrom continue their drinking. Eventually they arrived at the trash pile on a rural road where Mrs. Smith was killed.

Here they parked and took more drinks. Contradictory accounts as to what occurred thereafter were recounted to the jury by Handley and by the appellant.

In the trial below Handley testified that at the scene of the shooting he was attempting to have sexual intercourse with the deceased. The appellant was standing at the rear of the truck. The appellant came from the rear of the truck and ordered Handley to go to the back of the truck, and the appellant then began 'fooling with' the deceased. The appellant then pulled a pistol from his left pocket, and Handley began walking down the road. When he had walked eight or ten feet down the road, the appellant told Handley to 'hold it.' Handley stopped, and as he turned about halfway around he heard a gun fire and saw the deceased's head fall. Handley then jumped into the woods on the side of the road and ran.

Handley ran through woods and fields and came to a house where he used a telephone to call the sheriff's office and report the incident.

According to several witnesses, including Deputy Sheriff Easterwood, and Sheriff Waldrop, Handley's account as to what had occurred was to the effect that when he walked down the road and had stopped at appellant's command to 'hold it,' the appellant fired his pistol at him twice, the second time as he was running through the woods, and that as he was running after the second shot, he heard a third shot. Looking quickly back he saw deceased fall from the truck. Handley gave a written statement to law officers in accord with this first version, and this statement was received in evidence when offered by the state. Handley had also testified in a previous hearing of same nature in accord with his first version.

The evidence is uncontradicted that only one shot was fired from the pistol owned by the appellant.

When confronted with the veriation between his testimony at the trial, and his prior statements and testimony, Handley's responses were evasive and equivocal and, at one time, he testified that his prior statements were 'no good' since he did not have a lawyer present when he made them.

The appellant's testimony as to what happened at the scene of the shooting was to the effect that while Handley was attempting to have intercourse with the deceased, she protested appellant's presence, and at Handley's request, he walked down the road. He then sat down and went to sleep. He was awakened by 'something,' he did not know what, and walked back to the truck. Here he saw Mrs. Smith lying in the truck and Handley near the truck. He tried to raise Mrs. Smith up and she fell out of the truck onto the ground. As he had been trying to get away from Handley and Mrs. Smith for some time, he got in his truck and drove back to his trailer.

When the officers, guided by Handley, arrived at the scene they found Mrs. Smith on the ground with a bullet wound in her chest. She was dead.

Deputy Easterwood dispatched two officers to pick up the appellant. He was found at his trailer camp asleep on the seat of his truck. The appellant was handcuffed and placed in the officer's automobile. A 38 calibre pistol in a scabbard was found on the seat of appellant's truck. It had been fired one time. Ballistic tests showed that the bullet that killed Mrs. Smith was fired from this pistol.

Appellant was highly intoxicated. The officers then drove back to the scene with the appellant.

Counsel argues that error to reversal resulted from the court's action permitting, over appellant's objections, certain accusatory statements addressed by the witness Handley to the appellant when he was brought back to the scene of the shooting after the officers had taken him in custody at his trailer, and appellant's failure to reply thereto. This testimony was elicited through the witness Handley, state trooper Shafer, and Sheriff Waldrop.

The evidence shows that at the time the appellant was taken into custody at his trailer, he was either asleep or 'passed out,' or as one officer stated, probably both. The appellant remained in the officer's automobile at the scene of the shooting, and the evidence is clear that he was quite intoxicated. The evidence further shows that Handley was 'nervous and crying' at the scene, and was intoxicated.

It appears that Handley was taken to the automobile in which the appellant was seated for the purpose of identifying the appellant.

Handley testified he approached within a foot or a foot and a half of the automobile. He did not know whether the windows were up or down. Handley testified that at this time, 'I said, why did you shoot her?' Handley was then asked, 'Did he see you?' In answer to the question Handley replied, 'I guess he did.'

At this time appellant's counsel interposed a general objection, with no grounds assigned. It does not appear that the court ruled on the objection. Handley then testified that the appellant did not reply to his question but 'dropped his head down.'

Trooper Shafer's testimony is to the same effect, except that the record shows the following during the direct examination of Shafer:

'Q. Did you hear Other Handley say anything to Caldwell?

'A. Yes, sir.

'Q. What did he say?

'Mr. St. John III: We object to that.

'The Court: Overruled.

'Mr. St. John III: We except.

'A. He said, 'Why did you kill her?"

Shafer further testified that the appellant did not reply, but 'dropped his head.'

No error can be posited on these instances, in that the court did not rule as to the objection during Handley's examination, and in both instances only a general objection was interposed. There had been no testimony at the time Handley and Shafer testified as above as to the intoxicated condition of both Handley and the appellant. In this aspect the evidence may not have been obnoxious to all rules of evidence, whereas it would have been if the intoxicated conditions of Handley and the appellant had been shown at the time of the conversation.

A different picture is presented by the time Sheriff Waldrop testified in that the evidence had shown that both Handley and the appellant were intoxicated at the time Handley made his statement to the defendant. During the examination of Sheriff Waldrop, he testified that he had asked Handley to go to the automobile to identify the appellant. The record then shows the following:

'Q. What tone of voice did Manzie Handley use when he talked to the defendant?

'A. He walked up and stuck his head in the window and looked straight toward Mr. Caldwell with his shoulders stuck inside and said, 'Why did you shoot her?' And I reach up and grabbed him and told him I didn't ask him to have a conversation with him.'

Following the above answer by the Sheriff, counsel interposed an objection, and also moved to exclude it. This motion was overruled.

The general rule is that where no grounds are assigned in support of motion to exclude, no error results in denying the motion. Alabama Securities Company v. Dewey, 156 Ala. 530, 47 So. 55; Southern Electric Generating Company v. Lance, 269 Ala. 25, 110 So.2d 627. However, it is the rule that a general objection to a question calling for evidence which is obnoxious to all rules of evidence, and cannot be made admissible by reframing the question or additional testimony, a general objection is sufficient. Shores v. Sanders, 271 Ala. 552, 126 So.2d 201; Helms v. State, 34 Ala.App. 82, 37 So.2d 229; ...