Culberson v. State

Decision Date28 November 1979
Docket NumberNo. 50802,50802
Citation379 So.2d 499
PartiesAlvin CULBERSON v. STATE of Mississippi.
CourtMississippi Supreme Court

Albert Sidney Johnston, Jr., Biloxi, for appellant.

A. F. Summer, Atty. Gen., by Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.

EN BANC.

PATTERSON, Chief Justice, for the Court on the Guilt-Determining Phase; SUGG, Justice, for the Majority on the Sentence-Determining Phase.

Alvin Culberson was convicted of capital murder and sentenced to death by the Circuit Court of the First Judicial District of Harrison County. A similar verdict and sentence on the same charge were reversed and remanded in Culberson v. State, 348 So.2d 1025 (Miss.1977). We there directed a new trial with bifurcation pursuant to our The evidence adduced at Culberson's second trial sufficed to convince the jury of appellant's guilt. The state established through Alvarese Pittman, an accomplice, that he was with Culberson on January 31, 1975, when they met in a restaurant and schemed a robbery. In furtherance of their plan, Pittman and Culberson left the restaurant seeking a victim, and as they walked along a highway, Culberson picked up a stick, a table leg, believed to be needed for their purpose. Pittman's testimony concerning their intentions and the stick follows in part:

decision in Jackson v. State, 337 So.2d 1242 (Miss.1976). We presently affirm the guilty verdict.

Q. What did you all talk about?

A. Well, we was sitting there and Alvin came, and we just started about robbing somebody. He was broke and I was broke. We wasn't looking for nobody in particular to rob, we was just walking up towards Old Highway 49, and on our way up toward Old Highway 49 we saw a Frito truck in front of the Beverly Lounge. We was walking that way, and alongside the ditch was a table leg, a stick and Alvin picked the stick up and we went on up to the Club.

Q. What were you going to do?

A. Going to knock the man out with the stick.

Q. And do what?

A. Rob him. After we knocked him out we was going to get his money.

Q. Whose idea was it to commit this robbery?

A. Alvin's. It was both, I agreed with him.

Just before obtaining the stick or immediately afterward, Pittman and Culberson observed a delivery truck parked in front of the "Beverly Lounge" business establishment. They also saw someone, their prospective victim, leave the lounge and move toward the truck when the following occurred, according to Pittman:

Q. Now, as you approached the man, the two of you, tell the Court and jury what took place.

A. Alvin spoke and I spoke, and he spoke back.

Q. Where was the man at this time?

A. He was about ten or fifteen feet, between ten and fifteen feet from the door, going to the truck.

Q. From the door of the Beverly Lounge?

A. Yes, going back to the truck. I guess he was going to get his order.

Q. And then what happened?

A. We spoke and by the time we got past him

Q. Did the man speak back?

A. Yes, sir.

Q. Was it any kind of arrogant speaking?

A. It was just a normal hello, how're you doing. And Alvin turned around and hit the man in the back of the neck with the stick, which he intended to knock him out. He knocked him down but he didn't knock him out, and the man fell on the ground and begged him, throwed up his hands and hollered for help.

Q. What did the man say when he fell to the ground?

A. He hollered for help.

Q. What did the man say? Just tell the jury what he said.

A. He said "help, help me", and by that time Culberson pulled out the gun and shot him, and I said "what you done done, man? Let's go", and we took off running and run toward the Tims Motel and I slipped down going in the door, and I got back up and ran, and we got away.

Pittman also testified he was not aware that Culberson was armed with a pistol and would not have accompanied him had he known so.

Only Pittman and Culberson witnessed the shooting although others heard the shot and saw two men leaving the scene. While these witnesses could describe the general appearance and clothing of the fleeing men, none could identify Culberson as one of the

men they observed on the occasion. The remainder of the state's evidence concerned the death of Grady Evans by a bullet wound, pictures of the scene and other requisites to establish the corpus delicti. Culberson did not testify.

I.

The appellant contends his conviction is contrary to the weight of the evidence. This argument has little merit, in our opinion. It is well established in our jurisprudence that an accused may be convicted on the uncorroborated testimony of an accomplice. Rich v. State, 322 So.2d 468 (Miss.1975); Moore v. State, 291 So.2d 187 (Miss.1974); Young v. State, 212 Miss. 460, 54 So.2d 671 (1951); Larry v. State, 211 Miss. 563, 52 So.2d 292 (1951); Boutwell v. State, 165 Miss. 16, 144 So. 479 (1932); Matthews v. State, 148 Miss. 696, 114 So. 816 (1927).

While it is true the testimony of an accomplice must be considered with caution, Feranda v. State, 267 So.2d 305 (Miss.1972), the record here demonstrates that Pittman's testimony is neither unreasonable nor uncorroborated. The photographs, the physical facts, corroborate Pittman in every important particular. Although the testimony of an accomplice, if unreasonable, improbable, self-contradictory or if impeached by an unimpeached witness, is not sufficient to carry the burden of proof for conviction, Feranda, supra, we nevertheless think reasonable explanation of contradictions may be offered, leaving the evidence sufficient for the jury's resolution if it accepts the explanation.

In cross-examining Pittman, a prior contradictory statement consisting of an affidavit executed by Pittman while in prison was introduced into evidence. He swore in it that he did not see Culberson shoot anyone. The contradiction was explained by him as being the result of fear because he thought there was a "contract" on his life while he was incarcerated. He disclaimed the truth of the affidavit from the witness stand and reaffirmed that Culberson was the person who killed Evans. The jurors resolved the truthfulness of the different statements by accepting the accomplice's last version after being properly instructed that an accomplice's testimony must be regarded with caution and suspicion. We are of the opinion the jury had the right to accept as true Pittman's current testimony. As stated, there was sufficient evidence to sustain the jury's verdict.

II.

Culberson next contends the testimony at trial varied from the indictment, requiring reversal. The indictment follows in part:

That ALVERREECE PITTMAN AND ALVIN CULBERSON . . . on or about the 31st day of January in the year of our Lord, 1975, . . . did unlawfully, wilfully & feloniously, with malice aforethought, kill and murder one Grady V. Evans, a human being, while engaged in the commission of robbery upon him, in violation of Section 97-3-19, Sub-Section 2(e), Mississippi Code of 1972, as amended, . . .

The statute on capital murder referred to in the indictment states in part:

§ 97-3-19.

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

(e) When done with or without any design to effect, by any person engaged in the commission of the crime of . . . robbery, or in any attempt to commit such felonies, . . .

Culberson's initial argument is that the indictment charged robbery whereas the testimony only relates to an attempted robbery. Subsection 2(e) appears in the indictment as an exact reference to the constituent violation with which the appellant is charged. The statutory language, "engaged in the commission of the crime of . . . robbery," which coincides with that of the indictment, "while engaged in The appellant next suggests the indictment is defective because it does not allege an intent and overt act as required for attempted crimes, citing Dill v. State, 149 Miss. 167, 115 So. 203 (1928), and Miller v. State, 130 Miss. 730, 95 So. 83 (1922). We cannot agree, because the indictment clearly states that Culberson did willfully kill a human being, etc. The words, "did willfully kill," mean the completed act of homicide which also necessarily means there was an overt act sufficient to accomplish that result. We reject this contention by repeating the indictment is clear, unambiguous and was sufficient to inform the appellant of the constituent offense with which he was charged.

the commission of robbery," is sufficiently comprehensive, in our opinion, to include the attempt. The legislative intention in elevating a homicide from murder to capital murder was upon the basis that it be committed during the commission of one of the felonies enumerated in the statute, rape, burglary, kidnapping, arson or robbery. It is enough if the constituent offense is related to the greater charge in the indictment by language clearly informing the indictee of the underlying felony in which he was engaged, or its attempt, at the time of the homicide. In our opinion, the statutory language, "engaged in the commission of," includes the attempt to commit the constituent felony, the completed constituent felony, as well as the immediate post-felony acts of the accused so connected to the cardinal charge as to become a part of it, the res gestae. Pickle v. State, 345 So.2d 623 (Miss.1977); Lipscomb v. State, 223 Md. 599, 165 A.2d 918 (1960); MacAvoy v. State, 144 Neb. 827, 15 N.W.2d 45 (1944). The language of the indictment was sufficient to apprise Culberson of the constituent charge against him, thereby enabling him to prepare a defense to it, if any he had.

III.

On October 17, 1977, the day before the testimony in the trial got under way, defendant moved for a continuance because two of his witnesses were not present though subpoenas had been issued for them. He urged their testimony was necessary to a proper defense. No pretrial ruling on the motion...

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