Clack v. State

• Decision Date: 30 April 1940
• Docket Number: 5 Div. 79.
• Citation: 196 So. 286,29 Ala.App. 377
• Parties: CLACK v. STATE.
• Court: Alabama Court of Appeals

196 So. 286

29 Ala.App. 377

CLACK v. STATE.

5 Div. 79.

Court of Appeals of Alabama

April 30, 1940

Rehearing Denied May 21, 1940.

Appeal from Circuit Court, Chilton County; Arthur Glover, Judge.

Bill Clack, alias M. D. Clack, was convicted of murder in the second degree, and he appeals.

Reversed and remanded.

Gerald & Gerald, of Clanton, for appellant.

Thos. S. Lawson, Atty. Gen., and Willard McCall, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

The appellant, defendant below, was indicted for the offense of murder in the second degree. Specifically, "that he unlawfully, and with malice aforethought, killed Carl Gore by shooting him with a pistol, but without premeditation or deliberation," etc. Upon the trial the defendant was convicted of murder in the second degree, and his punishment was fixed at ten years' imprisonment in the penitentiary.

From the judgment of conviction, pronounced and entered, this appeal was taken.

The evidence adduced upon the trial, disclosed, without dispute that on Sunday afternoon of December 18, 1938, this appellant shot Gore, the deceased named in the indictment, with a pistol, and that Gore died as a result of said wound thus inflicted.

Without dispute also it was shown, that the aforesaid killing happened in the home of the defendant in the presence of his aged mother, and other members of defendant's family, and also in the presence of Mrs. Bertha Gore, the divorced wife of deceased. These parties, it appears, were the only eyewitnesses to the killing, and each of them testified in behalf of the defendant.

Upon the trial below, and here, the defendant insists that he shot in self-defense and in defense of his home. He testified, and this without contradiction, that at the time in question he knew the deceased but slightly, that he had seen him two or three times only, and that he had never had any trouble differences or difficulty with the deceased, and that as a consequence he entertained no bad feelings, ill will or animosity against him.

It appears from the evidence that on November 22, 1938, (barely a month before the homicide complained of was committed) the estranged and divorced wife of the deceased rented, from defendant, a small store house in which to live with her four small children; that said house was about 25 or 30 feet from the house where defendant lived with his family.

On or about 3 o'clock in the afternoon of the day of the killing, the deceased employed witness Mason Snyder, a taxi driver, to carry him from Clanton to where deceased's wife and children were living, which was about six miles from Clanton. Snyder testified he stopped once or twice on the way, and after they arrived at the home of deceased's wife and children, he left deceased there and did not wait for him.

Mrs. Gore testified, after deceased had been in her house a little while, she took her baby and went into the home of Mr. Clack, and stated: "I was not in Mr. Clack's house very long before Carl Gore came in, something like ten minutes."

All the testimony as to how the trouble started was to the effect that deceased approached the home of defendant in a very belligerent manner, using opprobrious and profane language, calling Mr. Clack, the defendant, a G--d_____ double-crossing S. of a b. and other epithets of like character, and repeated same several times, and said "G-- d_____ you come out here and talk to me." Whereupon, Mr. Clack stated: "I walked to the front window, * * * and I hollered and told him, I said: Carl you go on and get out there in the road, and catch a way to Clanton, and I will see you tomorrow, and talk to you when you are sober; * * * I saw him coming on that walkway by the window, he was saying you G-- d_____ double crossing s-- of b. I will talk to you now, God damn you now." Defendant was at that time in a rear room of his house drinking a cup of coffee. The front door to defendant's home was closed and also fastened on the inside by a bolt or button. All the testimony shows that deceased crashed and broke open the front door and entered defendant's home in a belligerent and threatening manner. When the defendant heard deceased crash open the front door of his home, he, defendant, got up and went into the room, where defendant's aged mother was screaming with fright. Mrs. Gore's baby was crying and she (Mrs. Gore) testified she was greatly excited, and hollered, and begged her husband to go on out of the house. Defendant testified that on his way to the front room where his mother was, and into which the deceased forcibly entered, as above stated, he secured his pistol which was hanging on a wall in his home on a nail and under some clothes; "that as I got that gun my mother was screaming and when I got to the door just after the front door crashed he (deceased) was right there in my house coming toward me with his left hand up, and right hand down by his side, I couldn't see whether he had any weapon or not, he had his hand kinder behind him, it was his right hand side, and his hand was behind him when I fired one shot only. He was about three or four feet from me when I fired. * * * I shot one time that afternoon, there were more cartridges in my gun."

The deceased, as disclosed by the testimony, was about six feet, or more, tall; and a younger man than defendant who weighed about 145 to 150 pounds, and that at the time he (defendant) had a bad heart and lungs and a crippled leg, which caused him to walk with a limp.

Pending the trial several exceptions were reserved to the rulings of the court upon the admission of the testimony. Also to the action of the court in overruling and denying defendant's motion for a new trial.

The defendant undertook to show by State witness Snyder, the taxi driver ...