Collins v. State, 6 Div. 120

• Decision Date: 18 May 1937
• Docket Number: 6 Div. 120
• Citation: 176 So. 219,27 Ala.App. 499
• Parties: COLLINS v. STATE.
• Court: Alabama Court of Appeals

176 So. 219

27 Ala.App. 499

COLLINS v. STATE.

6 Div. 120

Court of Appeals of Alabama

May 18, 1937

Rehearing Denied June 8, 1937

Appeal from Circuit Court, Jefferson County; J.Q. Smith, Judge.

Jerry Collins was convicted of second-degree murder, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Collins v. State (6 Div 164) 176 So. 223.

Ross, Bumgardner, Ross & Ross, of Bessemer, for appellant.

A.A Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen for the State.

BRICKEN Presiding Judge.

The indictment in this case charged the appellant with the offense of murder in the first degree, in that he unlawfully and with malice aforethought, killed Earl Collins by shooting her with a pistol. In the second count by stabbing her with a knife. The trial resulted in his conviction of murder in the second degree and the jury fixed his punishment at imprisonment in the penitentiary for twenty years.

The evidence disclosed that Earl Collins, the deceased named in the indictment, was the divorced wife of the defendant. That they had married and lived together as man and wife for about four years, and at the time of the killing, complained of, they had been divorced for one year during which time they had lived and remained separate and apart. The deceased was killed in the home of her mother, where she and defendant also lived during their married life. When the court granted the divorce above referred to, it also awarded alimony and solicitor's fee in favor of complainant (deceased).

At the time of the killing the appellant was in arrears with his payment of alimony and the court had instituted garnishment proceedings against his wages. Before they were divorced, the appellant had taken out a life insurance policy for $1,000 and had named the deceased as the beneficiary. The policy was in the possession of the deceased and the appellant had been trying to get possession for the purpose of changing the beneficiary. On Friday night before this killing occurred on Sunday, the deceased sent word to the appellant that she wanted to see him on the following Sunday between 10 and 11 a.m. This message was delivered to the appellant on Saturday before the killing. On the day before the killing, the deceased, who had after the divorce taken her maiden name "E. Johnson," mailed a post card to the appellant requesting him to call her or drop by to see her soon, stating on the card that she would like to discuss things with him. After the appellant received this message, and also the post card from the deceased, he got off from his duties on that Sunday and went to the house and home of the deceased, in answer to these two requests. When he arrived at her home, there was no one present except the deceased and Earl Richard Taylor, a fourteen-year old girl cousin of the deceased, and when the appellant went into the deceased's home this fourteen-year old cousin almost immediately left and went over to a neighbor's house. What happened immediately before and during the difficulty between the deceased and the appellant is in conflict. The evidence on behalf of the state tended to show that the appellant shot the deceased several times and then cut her with a knife.

A state witness, the attending surgeon, whose qualifications as a surgical and medical expert were admitted, testified as to several bullet and knife wounds upon the person of the deceased, and that certain of these wounds caused her death. That one bullet pierced the left lung completely and traversed part of the right lung superficially near the base, and also passed through the spinal column with division of the spinal cord resulting in complete paralysis from the level of the umbilicus (navel) from there down, causing complete loss of sensory and motor function due to the division of the spinal cord.

One of the first persons who entered the house after the tragedy was state witness Appling, a city detective, who arrived at the scene a few minutes after the killing. Among other things he testified: "Myself and Mr. Leonard went in the house together. The officers were scattered around the house. Some one had told us to be careful, that there was a man in there that had done some shooting. The officers scattered out around the house. Mr. Leonard and myself went in the house, in the front. When we got in the house we saw two people lying on the floor, a man and a woman. We entered the door and the woman was lying there flat on her back. The man was lying on his right side with his left arm stretched out on his right side. There was a big knife there in four or five inches of his left hand, and a pistol. The woman was as bloody as a hog, blood all over her, her clothes and face and hands, and on her face was specks, spattered all over her face. The woman's hands were soaked in blood and clothes soaked in blood. I saw that she was in a serious condition but I did not take her clothes off to see where the wounds were. We found them there. She was lying there with her eyes set, her eyes set in her head. Those weapons I spoke of, knife and pistol, I have here in my possession. The pistol has six empty shells in it, all fired. I examined the chambers of that pistol and every one of the shells had been exploded. There are no bullets in them and no powder. You can see that every one of them has been fired. You could tell that the pistol had been recently fired, you could smell it. We found it right there. No one has claimed it. It is a Smith and Wesson special 32."

Earl Richard Taylor, witness for the state, testified, among other things, that she was fourteen years old and was at the time living in the home with deceased who was her cousin. And further, that: "On this Sunday that my cousin was shot I saw Jerry when he came to the house that morning. When Jerry came in my cousin was in the front room, the living room, sitting on the davenport. After Jerry had come in and sat down I came out and went out. I did not say anything to either of them as I came out. There was nobody in the house when I came out except Jerry Collins and my cousin, Earl. After I came outside I went next door. About that time I heard something that sounded like shooting. I heard some shooting, four or five shots. I did not go in the house right then and did not know the shooting was in the house. When I heard the shooting I was on the lady's porch next door, and I walked down off the porch and turned around; and as I got in front of my house, just about to pass it, I heard some hollering, and that is what made me run in. It was my cousin, Earl, hollering. I heard her hollering for help. She said 'Help,' 'Help,' real fast. Then I went in the house. I saw my cousin when I got in there. She was lying on the floor. I also saw the defendant Jerry Collins, and he was close to her, standing over her, looking down. I saw a pistol and a knife in Jerry's hands. The pistol was in his right hand and the knife in his left hand. Jerry was standing up, looking down on her. His feet was right up on her, as close as he could get. My cousin was lying there on the floor and she was just as bloody as she could be. Blood was just about all over her, some here and on her sleeves, and I noticed some down here. I did not particularly notice her face. I said that Jerry was standing up over my cousin at that time. Jerry said 'Nobody better not come in here.' I did not understand what my cousin said. When Jerry said 'Nobody better not come in here' he was standing over her, and after he looked up and saw me, then he moved towards me and that is what made me run. At that time he turned his hands up like this, both hands up like he was going to shoot. At that time I did not see that he was hurt or wounded at any place."

Numerous other witnesses testified to facts directly corroborative to the foregoing testimony, and also that no one entered or left the house after defendant had entered, except the girl above mentioned.

The state also offered evidence to the effect that some time prior to the killing the defendant had threatened to kill the deceased. One witness testified: "It was during the divorce case, and Jerry came there on Sunday; and he said he and Earl had a divorce case in, and if...