Duck v. State

• Decision Date: 15 January 1957
• Docket Number: 7 Div. 379
• Parties: Billie DUCK v. STATE.
• Court: Alabama Court of Appeals

Page 55

92 So.2d 55

38 Ala.App. 652

Billie DUCK v. STATE.

7 Div. 379.

Court of Appeals of Alabama.

Jan. 15, 1957.

Keener & Keener, Centre, for appellant.

John Patterson, Atty. Gen., and Owen Bridges, Asst. Atty. Gen., for the state.

CATES, Judge.

The grand jury of Cherokee County presented a true bill accusing Billie Duck of murdering his wife, Myrtle Duck, by shooting her with a pistol. The petit jury convicted him of first degree manslaughter and fixed his punishment at ten years imprisonment.

The inferences susceptible from the evidence and the jury's verdict would support the following statement of facts:

Mr. and Mrs. Duck were living temporarily in Centre, Alabama, on August 5, 1954. That night they had eaten in the Elite Cafe, gone out in the country twice, and there bought whiskey, had drunk part of the whiskey, had gone twice to a Mrs. Sowell's house, and had just alighted from a taxi on their return home when the shooting occurred.

Duck's testimony was that earlier in the evening he had taken a .22 calibre revolver from his wife's pocket and had tucked it under his belt. As Mrs. Duck got out of the taxi she grabbed the gun from under his belt. Duck testified that he reached for Mrs. Duck's forearm to disarm her; just as he got hold of the gun, it fired. The State adduced proof that Duck said only his hands had been on the revolver. Undisputedly, Duck led the officers to the gun which was some unspecified distance from the scene of the shooting.

The coroner, who was also an undertaker, testified that the death of Mrs. Duck was, in his opinion, caused by a bullet fired into her brain. An entry wound was in Mrs. Duck's head about one and a half or two inches above the right ear, and with a probing instrument he was able to trace a path toward the left eye. There was no exit wound. Nor was the bullet found. The witness indicated to the court the location of the wound, as did his son, who was also a mortician. The son also pointed on his own head the direction the bullet apparently took.

The State then proceeded, over objection, to lay the predicate for culpatory admissions of the defendant.

The competency of these admissions presents two beginning questions: First, were the attending circumstances, e. g., the age and condition of the prisoner, the lapse of time after arrest, scene and persons present, indicative of a free willed act; and, second, had the corpus delicti first been shown?

Mr. Virgil Howell, a policeman, testified Mr. Duck told him 'he shot her and he guessed he would burn for it.' This statement was made by Mr. Duck after his arrest, while he was being taken to jail. He was riding on the front seat of a police car driven by Mr. Howell, and Mr. Will Smith, a watchman for the town, was on the back seat. We consider the statement, which implies the expectation of electrocution, as within the influence of the rule which requires the State to negative the presumption that incriminating extrajudicial statements are not voluntary. Jackson v. State, 226 Ala. 72, 145 So. 656.

The solicitor asked Mr. Howell, 'Prior to Billie Duck making the statement to you, did you make any threats or promises or coerce him in any way?' The answer was, 'No.' 'Did he make the statement voluntarily and of his own accord?' To which the witness replied, 'He said he shot her and he guessed he would burn fot it.' '* * * Were you having a conversation with him at that time or did he voluntarily make the statement?' 'Voluntary statement.' 'You did not ask him?' 'No.' 'And it was not in response to any question?' 'No.'

The foregoing failed up to that point to negative that someone other than Howell had made threats, promises, or other inducements to elicit the statement against Duck's will. See Carr v. State, 17 Ala.App. 539, 85 So. 852. However, the next witness was Mr. Will Smith, who was questioned thus, '* * * did you or anybody else in your presence make any threats toward Billie to get him to talk or make any promises?' and again, 'Did you or anybody in your presence make any promise or offer any inducement or reward?' (Italics supplied.) Smith answered, 'No.'

When a confession has been admitted in evidence a presumption of correctness attends the judge's ruling, Price v. State, 117 Ala. 113, 23 So. 691, Bonner v. State, 55 Ala. 242, but the presumption is not to be overindulged where all of the evidence on voir dire is in the record, Carr v. State, supra.

The enquiry is to see if the defendant's statement was wholly voluntary. Attendant circumstances can be gathered from ordinary narration without need of the solicitor's liturgical (though not heretical) question of, 'Voluntary? Without promise or hope of reward,' etc. Thus, where the defendant blurted out to a witness, 'We done beat that son of a bitch to death * * *.' Livingston, C. J., characterized the statement as entirely voluntary. Davis v. State, 257 Ala 447, 59 So.2d 592, 594.

Aside from the question as to whether or not Duck's admission was voluntary because uninduced, we consider any error under the Carr case, supra, to have been cured by Mr. Will Smith's testimony as to the total absence of any threats, promises, or inducements. Crenshaw v. State, 225 Ala. 346, 142 So. 669.

Was the corpus delicti established before admission of the statement? In homicide it is needful to show death of a human being and a criminal agency. According to Shelton v. State, 217 Ala. 465, 117 So. 8, for purposes of admitting a confession, accident, natural causes, and suicide should be negatived. However, since, ordinarily, use of a deadly weapon imports malice, a working presumption of unlawful homicide can arise from a death from a bullet. State v. Benson, 183 N.C. 795, 111 S.E. 869.

On the general issue, the burden of proof is unvaryingly on the State to convince the jury beyond a reasonable doubt. Except as to a plea of not guilty by reason of insanity, which is regulated by Code 1940, Title 15, Section 422, the defendant, both as to the general issue and as to matters of excuse and justification, is not required to satisfy the jury of his innocence but need only create a reasonable doubt of his guilt.

Contrariwise, the State is not required to disprove excuses and justifications. Tyler v. State, 19 Ala.App. 380, 97 So. 573; Henderson v. State, 11 Ala.App. 37, 65 So. 721; Gibson v. State, 89 Ala. 121, 8 So. 98; Lewis v. State, 88 Ala. 11, 6 So. 755. Nor do we construe Mr. Justice Somerville, in Shelton v. State, as requiring the State to prove beyond a reasonable doubt that death was not the result of accident, natural causes, or suicide. Rather, a gunshot wound causing death, as a matter of evidence, is sufficient to imply the probability of criminal agency, certainly for determining the competency of a confession. Hodge v. State, 37 Ala.App. 450, 70 So.2d 285.

'To prove a prima facie case of corpus delicti, all that was required was to show a reasonable probability that a criminal act of another had been the direct cause of the death.' People v. Ives, 17 Cal.2d 459, 110 P.2d 408, 411.

The decision of admissibility of the defendant's statement was for the court unaided by the jury. We cannot say that the demonstrations by the coroner and his son, as observed by the trial judge, were not cogent enough to overcome in his mind any plausible theory of suicide or accident. Price v. State, supra; Bonner v. State, supra. This testimony, as to the wound and course of the bullet, made a case sufficient for submission of Duck's statement to the jury. Kozlowski v. State, 248 Ala. 304, 27 So.2d 818.

On cross-examination the defendant was asked, 'I will ask you whether or not sometime during the month of June in the presence of this colored man, Willie Seymore, and in the presence of fellow employees of yours on the job while working in Cherokee County, if you did not say this or this in substance: 'That if you had the rifle one of these men had at that time that you would kill your wife?'' This he denied. To impeach him the State put on a witness who testified that in his presence some time in June 1954 when 'an individual' who worked with him and Duck 'had a rifle out there' in Cherokee County on a bridge where they were working, Duck had made the statement 'if he had that rifle where his wife was he would kill her.'

The appellant cites Bridges v. State, 225 Ala. 81, 142 So. 56, to show reversible error upon the principle that as between the statement with which the defendant was confronted and that of the impeaching witness there was a variance great enough to cast doubt on whether the two witnesses were recalling the same statement. Thus in McClellan v. Lyle-Taylor Grain Co., 205 Ala. 59, 87 So. 596, the variance between "some corn * * * that was liable to be damaged" and "other corn * * * that was exposed to the weather" was considered objectionable. In Murph v. State, 153 Ala. 67, 45 So. 208, the predicatory question was, had not the main prosecution witness on a certain occasion said he had been tried and convicted in Dallas County for murder and sentenced to the penitentiary. The question put to the impeaching witness corresponded to the predicate, but the witness qualified his answer by restricting the statement of the prosecution witness as being to the effect that he had been convicted for 'shooting a man.' The discrepancy made the answer excludable. A similar situation of lack of correspondence between the impeaching witness' reply and the statement sought to be contradicted was set out in Bridges v. State, supra.

Substantial similarity and not identity is required to exist between the predicate laid and the proof adduced by the impeaching witness' testimony. Holmes v. Holmes 212 Ala. 597, 103 So. 884 (dictum); Clifton v. Gay, 21 Ala.App. 412, 109 So. 168; Nelson v. Iverson, 17 Ala. 216. In Armstrong v. Huffstutler, 19 Ala. 51, 'worthless' and 'of no value' were equated.

We consider here that the State's impeaching witness was...