Coon v. State

• Decision Date: 30 June 1914
• Docket Number: 296
• Citation: 65 So. 911,11 Ala.App. 46
• Parties: COON v. STATE.
• Court: Alabama Court of Appeals

65 So. 911

11 Ala.App. 46

COON v. STATE.

No. 296

Court of Appeals of Alabama

June 30, 1914

Appeal from Circuit Court, Dale County; M. Sollie, Judge.

Wayman Coon was convicted of murder in the second degree, and he appeals. Affirmed.

J.E.Z. Riley, of Ozark, for appellant.

R.C Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

PELHAM J.

The indictment on which the defendant was tried charges murder in the first degree. On the trial a conviction was had of murder in the second degree.

The evidence set out in the bill of exceptions tends to show, without material conflict, that the defendant was living with his wife in the same house occupied by his father and mother, and their children, the defendant's brothers and sisters. One of these sisters was a grown girl Cora by name, and the defendant and his wife occupied an adjoining room to this girl, but there was no means of communication by door or otherwise between the two rooms, and it seems that there was but one door opening out of the room. It was shown that the father was not at home on the occasion of the homicide. Between 10 and 11 o'clock on the night of the homicide, the defendant heard a noise at one of the windows of his sister Cora's room, and got up and went around to the side window of the room, where he had heard the noise, and called to Cora and asked her who was in the room with her, and she replied that she did not know that any one was in there. The defendant then called to the person, whom he could hear in the room moving around, to come out and let it be known who he was. Upon the intruder's failing to do this and remaining silent (meanwhile locking and holding the door leading from the room), the defendant called to Cora to come out of the room through the side window opening on the veranda. This she did, being helped out of the window by the defendant. The defendant then went around to the door of the room on the rear, or other side of the room from the window against which the person in the room had placed himself, and demanded that the intruder open the door and make himself known. This he did not do, but remained silent. The other members of the family had been aroused by this time and came upon the scene, the mother, also, calling to the person in the room to tell who he was and to come out. After going to the door held by the intruder the second time and demanding admittance (the intruder all the while holding the door and remaining silent), and failing to have his demand complied with, the defendant, who could "discern something white" and see the "bulk" of the person against the door through the window, informed him that if he did not open the door he (defendant) was going to shoot. This brought no response or action upon the part of the person in the room, whereupon the defendant went back to the window and shot into the room. The man ran out of the door and ran off, without being recognized, according to the defendant and other members of the family present, but there can be no serious question from the evidence that this man was one Bert Miley, the person whom the defendant is charged in the indictment with having killed. The deceased was a married man living in the neighborhood, and it was shown that his attentions to the girl Cora (all the parties were colored people) had been noticed and were the object of suspicion by her father some time before the killing, and that deceased had been warned to stay away from the girl and not come to her house. He had been, in fact, suspicioned of illicit sexual relations with the girl, and had made "apologies" to her father for his misconduct, promised "to do better," and stay away from her. These matters were all shown to have been known to the defendant before the night of the killing. The deceased died early the next morning, after the night of the shooting, from a wound inflicted by a pistol shot that entered near the center of the back and close to the spinal column. The testimony of the defendant and his relatives was that but one shot was fired by the defendant, and that that was fired by him into the room while the intruder was holding the door and preventing an entrance into the room. There was other evidence introduced by the state, however, tending to show that more than one shot was heard to have been fired at the time and place in question. The hat, coat, and shoes of the deceased were found on the ground under the window of the girl's room next morning after the shooting that night.

The conduct of the witness Cora Coon, when on the stand, and her refusal, or failure, to answer proper questions after the court was forced to waste much time in long waits and delays, fully justified the remarks of the court in admonishing her to answer questions, and in fining her for contempt for her refusal or failure to do so. The fine is shown to have been subsequently remitted. A witness may be adjudged in contempt of court for refusing to give testimony in a case in which he has been duly and regularly subpoenaed (Ex parte Pearce, 111 Ala. 99, 20 So. 343), and may be imprisoned until he consents to testify. Code, § 4028.

Under the evidence in this case it was for the jury to say, from all the circumstances, whether or not the defendant believed or suspected, that the person in the room with his sister was Bert Miley, the person he was charged with killing, and who, to the defendant's knowledge, had been accused of having improper relations with his sister and warned to stay away from the girl and keep off the premises. ...