Dillard v. State, 4 Div. 148

• Decision Date: 04 February 1936
• Docket Number: 4 Div. 148
• Citation: 165 So. 783,27 Ala.App. 50
• Parties: DILLARD v. STATE.
• Court: Alabama Court of Appeals

165 So. 783

27 Ala.App. 50

DILLARD v. STATE.

4 Div. 148

Court of Appeals of Alabama

February 4, 1936

Appeal from Circuit Court, Dale County; J.S. Williams, Judge.

Dezzie B. (alias Dozie B., alias Dossie B.) Dillard was convicted of manslaughter in the first degree, and she appeals.

Reversed and remanded.

Sollie & Sollie, of Ozark, for appellant.

A.A. Carmichael, Atty. Gen., for the State.

BRICKEN Presiding Judge.

This appellant was put to trial upon an indictment which charged her with the offense of murder in the first degree, in that she unlawfully and with malice aforethought killed Murie Ruffin by shooting him with a gun or pistol, etc.

The record appears regular in all respects, and from the judgment entry it is disclosed that the trial in the lower court resulted in the conviction of the defendant of manslaughter in the first degree, and her punishment was fixed, by the jury, at imprisonment in the penitentiary for a term of five years.

The evidence is without dispute or conflict to the effect that Ruffin, the deceased, died as a result of a gunshot wound in his groin, and it is likewise without dispute that the defendant had the gun in her hands at the time the fatal shot was fired. There were no eyewitnesses to the killing and the above-stated fact was ascertained from the confession of the defendant, which was obtained from her by one Dr. Pruitt, who appeared to be the principal witness for the state. There were other witnesses who also testified as to a confession of the defendant.

Dr Pruitt testified that he went to the home of this appellant saw and examined the wounded man in a back room of the house and found a gunshot wound in his right groin about the size of a silver dollar; that the place was bleeding; the wound was ragged, and ranged downward and outward.

The confession of the defendant, as testified to by the witnesses in each instance, was to the effect that on the afternoon in question, she and her two daughters, aged 9 and 12, were at her home and all of them were ironing clothes, etc. The two children were in the next room to her, and that the deceased came to her home in the afternoon and entered the room she was in; that he was drinking and raised a "rucus" with her, and he had a knife in his hand and got after her with that; that he tore her dress and scratched her breast, etc. Her alleged confession was in line with and of the same import of her testimony where she stated as follows:

"I have got the waist along with me that was torn that day. This is the front side (Exhibiting the waist). That's the one that was torn there by Murrie Ruffin.

"At this point defendant offered in evidence the garment just referred to and the same is, for purposes of identification, to be marked 'Exhibit 1.'

"As to what happened when Murrie came up there to my house: He came in there, he was drunk, and he said bad language; he said he wanted to talk to me and I asked him what he wanted to talk about, and he asked me--bad language, and I told him to go on, I didn't have no time to fool with him, I had to iron them clothes, and he used bad language, and I asked him, I said, 'You're drinking,' and he used bad language, and I told him to go on and he used bad language again, and he said, 'Is you going to do what I asked you?' And I didn't tell him nothing right then, and I walked on out after that, out of the room into the other room, tracing around, and he come on out of that dining room and come in the room where the children were, and I come out of that room where I was and come in the room where the children were, and I come out of that room where I was and come by him and he grabbed me and tore my dress and started on me with the knife, and I run and he run and I grabbed the gun and told him to get back and he used bad language, and he just come running, and I backed up from where I got the gun up at, and backed up, and he caught hold of the gun, about eight feet from where I got the gun at: I picked up the gun and he caught hold of it and he tussled there and I jerked the the gun loose, and it fired. He was still coming in my direction. After I grabbed the gun I backed up eight feet, and then he grabbed hold of the gun, and I wrung it loose, and he continued to come on me and I fired. *** After the gun fired he just said he was shot. He moved from where he was standing at the time he was shot. He moved about five feet, I reckon, and fell. He was right in the kitchen when he fell and he commenced crawling to the dining room. He was in the dining room at the time these other people came."

The foregoing testimony of the defendant was in several material ways corroborated by the testimony of her two daughters above mentioned; however, these two girls both testified they did not see the gun when it fired, as their mother and deceased were in another room.

The foregoing evidence was without dispute, and at the conclusion of the evidence for the state, the appellant made motion to exclude the testimony and discharge the defendant; insisting in this connection that the evidence showed without dispute that the defendant was in her own home, where she had the right to be, and that the testimony tending to show the killing also disclosed, under the law, that said killing was justifiable under the law of self-defense, that said defense was fully made out by the evidence upon which the state relied for a conviction. Further, that there was no semblance of testimony tending to show a motive upon the part of the accused to take the life of the deceased, etc. The court overruled the motion to exclude the testimony and discharge the defendant, and in our opinion this ruling was without error. This view obtains for the reason that while there was no substantial conflict in the evidence, as above quoted, there was evidence adduced that search was made for the alleged knife claimed to have been in the possession of the deceased, as above quoted, and that no knife was found upon his person, or about the house where the killing occurred. Thus a conflict in the evidence on this question was engendered, and there being a conflict in the evidence, even to this extent, the court was required to and did properly submit the case to the jury for its consideration.

There was error, however, in the ruling of the court in declining to let the defendant show by her witness Georgia Law Dillard that just prior to the shooting and during the difficulty that the deceased said hard words to her mother, and that he threatened her. These questions had reference to matters of the res gestae, and were admissible for that reason, as well as under the elementary rules of evidence in a case of this character. Appellant's counsel made known to the court upon the sustaining of the objection to the question "Did he threaten her?" that she expected to prove by said witness, if permitted to answer this question, witness would swear that Ruffin did threaten to take the life of the defendant there on that occasion. The question was not...