Carter v. State
| Decision Date | 06 June 1929 |
| Docket Number | 6 Div. 130. |
| Parties | CARTER v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied June 27, 1929.
Appeal from Circuit Court, Jefferson County; John P. McCoy, Judge.
Will Carter was convicted of murder in the first degree, and he appeals. Affirmed.
O. S Finch and Jim Gibson, both of Birmingham, for appellant.
Charlie C. McCall, Atty. Gen., and J. W. Brassell, Asst. Atty. Gen for the State.
Will Carter was indicted for the murder of Sam Harris, was convicted of murder in the first degree, and his punishment fixed at death.
Evidence for the state tended to show: The killing occurred at the by-product plant of Sloss-Sheffield Company in North Birmingham. It was pay day. A difficulty arose between Isham Carter, a brother of defendant, and Ed Tarwater, watchman at the pay office, touching Isham's position in the pay line. In course of this difficulty, Tarwater struck Isham over the head with a pistol. Isham then went to his home some three blocks away and within some 15 to 20 minutes returned with his brother, this defendant; Isham was armed with two pistols, and Will with one; Isham promptly assailed Tarwater slapping and kicking him while holding the pistols on him; Will was acting with his brother; had his pistol also drawn and directed at Tarwater; presently Will turned, fired upon and killed the deceased, Sam Harris. Men in the crowded lobby, some already seeking safety, made a rush when this shot was fired. In this moment of diversion Tarwater drew his pistol, fired first at Will Carter, and instantly engaged in a pistol duel with Isham Carter. Isham was killed; Tarwater and Will wounded.
Defendant's version is that he was called when his brother came home to prevent Isham's return to the place of difficulty; that he went along to keep him out of trouble; that he took the pistol from Isham's person, not knowing he had another; that there were only two pistols; that he was engaged in preventive effort when Harris struck him over the head with a pair of pliers; that he was so stunned by the blow that he did not realize what was done thereafter.
The state's testimony, however, abundantly supports the view that both came in with pistols drawn; that both entered into the attack on Tarwater. Some witnesses testify that Will called to his brother to shoot Tarwater. State witnesses testify that Harris was present taking up a collection; had in his hands a list and a cigar box to receive the collection; that he had no pliers; was making no attack on Will when he was shot.
One version, supported by the testimony of Tarwater and others, is that Harris, seeing the menaced position of Tarwater, and making way to the exit through the crowd, ran against or pushed Will Carter around, creating a diversion in Tarwater's favor; that Harris then stumbled against the wall and as he turned was shot by Will Carter.
Without added detail we do not question that the issue on murder in the first degree was one for the jury; that the affirmative charge on this issue was properly refused; and denial of a new trial for want of sufficient evidence was without error.
The evidence fully warranted a finding that defendant went with his brother to back him up in beating Tarwater at the point of their pistols, and with the purpose to kill Tarwater or any other man who should interfere. Will fired the first shot.
From the beginning of the altercation between Isham and Tarwater to the tragic end was one continuous affair. What was said and done by each of the participants was of the res gestæ and admissible.
Testimony of E. F. Brown, that just after the shooting he asked Will Carter if he had a gun, that he took it from his person and found one empty cartridge in it, was clearly proper.
Evidence of the coroner that he found on the dead body of Isham Carter some 64 cartridges fitting the two pistols in evidence was properly received.
The evidence of active participation in the difficulty was evidence of a common purpose or conspiracy. The cartridges were corroborative of other facts as to deadly purposes of Isham and Will at the time. So the pistols identified as being those used by Isham were properly admitted. Evidence that Tarwater had trouble with other negroes on other and previous occasions was properly rejected.
Defendant's witness E. D. Davis was, on cross-examination, questioned as to certain statements made by him on a coroner's hearing. The witness was permitted and directed to read the whole of such former testimony as taken by a court stenographer. On objection by defendant, the solicitor stated: "For the purpose of impeaching him."
If this was not deemed sufficient to properly limit the testimony to purposes of impeachment, an objection should have been interposed on such ground, or the court requested to give an instruction. Thomas Furnace Co. v. Carroll, 204...
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