Creel v. State, 7 Div. 295
| Decision Date | 16 July 1974 |
| Docket Number | 7 Div. 295 |
| Citation | 53 Ala.App. 226,298 So.2d 647 |
| Parties | Charles Eugene CREEL v. STATE. |
| Court | Alabama Court of Criminal Appeals |
This is a coram nobis proceeding seeking to overturn a second degree murder conviction in June of 1971. Petitioner was charged with killing his wife by shooting her with a shotgun, and his punishment was fixed by the jury at twenty (20) years in the penitentiary. At his original trial, he was represented by distinguished counsel of his own choice. He did not testify in that trial. There was no appeal from the original judgment of conviction.
A copy of the transcript of the evidence on the trial in chief and the testimony taken at the preliminary trial were introduced as exhibits in the hearing of the petition for writ of error coram nobis. The homicide occurred on September 12, 1970, in the Maylene Community of Shelby County. Petitioner shot his wife with a 12 gauge pump gun in their trailer home around 8:30 P.M. She was shot three times. After the shooting, she walked to the home of her parents which was located several yards from the trailer. She was bleeding profusely from the shotgun pellets both in front and back of her body. Her father and mother met her at the door of their home and assisted her to the bathroom where her mother started washing blood from her. She died in the bathroom before the ambulance arrived.
Petitioner immediately left the scene of the shooting and was arrested later that night in Bessemer, Alabama, and returned to the Shelby County Jail. The investigating officers gave him the Miranda warnings and he signed a waiver of rights form and also signed a confession. The rights form and the signed confession were introduced at the preliminary hearing but were not offered as evidence on the main trial, and no reference thereto was made.
Upon filing a Pro se petition, the trial court appointed counsel to represent the petition and set the case for a full evidentiary hearing several weeks later. The record reflects that appointed counsel was also retained by petitioner's family to represent him. Counsel filed another petition in which he adopted all of the allegations of the Pro se petition but greatly expanded this petition with other allegations.
The main thrust of the petition as last amended is the contention that petitioner Appellant presents this syllogism: My wife died from No. 6 shot; I only shoot No. 5's; therefore, someone else killed my wife and I should be released from custody. Appellant made every conceivable effort to retry the homicide case and resorted to the rankest kind of hearsay testimony to prove that the family of the deceased played some part in her death and that he is serving time for a crime he did not commit. Finally, he urges that if it be proved that he is guilty in the shooting death of his wife, that his sentence is too long and should be reduced.
did not have the requisite intent to shoot his wife. He further contends that the only shotgun shells he had in his possession on the night of the homicide were No. 5 shot, and that the evidence was uncontradicted that No. 6 shot were removed from the lungs of the deceased.
So strong was petitioner's insistence that only No. 6 shot were removed from the body of his wife, and that he only had No. 5 shot in his possession, the trial court, out of a sense of innate fairness acceded to petitioner's request to permit the toxicologist to take the front door to the trailer that contained shotgun pellets, the 12 gauge pump gun, the three spent shotgun shells, and the four unspent shells found in the trailer after the shooting, and conduct a firearm test and report his findings to the court. The trial court made it plain that he would abide by the findings made by the toxicologist. The toxicologist's report is as follows:
Mrs. Doris Franklin Creel, dec., vic.
Charles Eugene Creel, susp.
(2) A 12 guage Revelation shotgun, Model 300-Pump shotgun with four live 12 gauge cartridges attached to barrel with scotch tape (Petitioner's Exhibit #3)
(3) A trailer door--Exhibit #12, Petitioner's Exhibit #4.
(1) Remington-Peters shurshot #6 similar to 2 of the evidence hulls.
(2)...
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